Virginia, the Pew Commission and the Regulation of Health Professions
by C. Donald Combs


A presentation made during the Seventeenth Annual Meeting of the Council on Licensure, Enforcement and Regulations, September, 1997, Norfolk, Virginia.

EXECUTIVE SUMMARY
Study of the Appropriate Criteria to be Applied in Determining the Need for Regulation of Any Health Care Occupation or Profession

AUTHORITY FOR THE STUDY
There is a growing sense that, although well-intentioned, health professions regulatory goals, structures, and mechanisms are increasingly out of synchronization with health care delivery processes. Moreover, as the pace of change in health care delivery accelerates in response to the new emphases on competition, health care outcomes, efficiency, and patient-focused care systems, the incongruence between the regulatory framework and the needs of the health care industry will be exacerbated. An urgent question facing policy makers and health professionals is: "How can health professions regulation achieve its primary objective of protecting the public from harm without unnecessarily restraining progress in health care delivery systems?"

Virginia is not immune to the rapid pace of change in health care and has been grappling recently with a variety of issues surrounding the regulation of health care professionals. Over the last several years the Board of Health Professions and the General Assembly have been faced with numerous requests from health professional associations interested in further regulation of their professions. In 1996, the issue of licensure of respiratory therapists in the Commonwealth was brought before the General Assembly. Respiratory therapists were certified, and obtaining licensure would have represented a greater degree of regulation for that professional group. The Virginia Hospital and Healthcare Association raised objections to the additional regulation of Virginia health professions based on "the premise that cross-training and cross-functioning of health care professions in their employment was desirable" and the fear that additional regulation of health care professions would preclude such workplace changes. The ensuing discussion of the respiratory therapy licensure issue resulted in a desire by the General Assembly to conduct a more wide-ranging study of the issue of health professions regulation in general and led to the study that produced this report. Over five years had passed since the current criteria used for regulation of health professions in Virginia were adopted. The Pew Health Professions Commission in 1995 had issued a widely circulated report on health care workforce regulation that initiated a national discussion of this issue. Thus, the timing was right for a review of health professions regulatory criteria utilized in Virginia. In its 1996 session, the Virginia General Assembly passed House Bill 1439, subsequently codified as Chapter 532 of the 1996 Acts of the Assembly, that amended the Code of Virginia section relating to the regulation of health professionals by the Board of Health Professions (§ 54.1-2409.2). This new section of the Code of Virginia required the Board of Health Professions to study and prepare a report for submission to the Governor and the General Assembly by October 1, 1997 on the appropriate criteria to be used in determining the need for regulation of any health care occupation or profession. Six principles to guide the selection of appropriate criteria were included in the study legislation. The study charge was to produce findings and recommendations on the appropriate criteria to be applied in determining the need for regulation of any health care occupation or profession. A broad study was mandated by the legislation, to include an examination of the current health care delivery system, the current and changing nature of health care settings and the interaction of the regulation of health professionals with a number of other areas of regulation. The study was to include, but not be limited to, reviewing and analyzing the work of publicly and privately sponsored studies of reform of health workforce regulation in other states and nations. Finally, the study was to be conducted in cooperation with Virginia academic health centers with accredited professional degree programs.

STUDY METHODOLOGY
To oversee the study process, the Board of Health Professions appointed a 5-member ad hoc Committee on Criteria. The Chair of the ad hoc Committee on Criteria was a public member of the Board of Health Professions. Other Boards/constituencies represented on the ad hoc Committee included the Boards of Medicine, Nursing and Social Work, while a second public member of the Board of Health Professions served on this Committee as well. To fulfill the General Assembly’s legislative mandate to conduct the study in cooperation with Virginia’s academic health centers, a Request for Proposals to conduct the study was issued to Virginia’s three academic health centers. Proposals were received from a Virginia Commonwealth University/Medical College of Virginia study team and from an Eastern Virginia Medical School study team. The ad hoc Committee on Criteria selected the Eastern Virginia Medical School study team to conduct the study. The Eastern Virginia Medical School study team was subsequently awarded a complementary research grant from the Pew Center for the Health Professions to study the changing role of health professionals in integrated health care delivery systems.

Four key methodologies were used to conduct the study: a comprehensive review and analysis of the professional literature, site visits by the ad hoc Committee to integrated health care delivery systems in the Commonwealth, prepared testimony to the Committee by national and international experts in health professions regulation and health care, and broad provider, consumer, insurance and other organizations’ participation in the study process.

SPECIFIC ISSUES AND AREAS OF ANALYSIS
Among the issues addressed during the study process were those identified by the Pew Health Professions Commission in its 1995 study on reforming health care workforce regulation: standardizing regulatory terms, standardizing entry-to-practice requirements, removing barriers to the full use of competent health professionals, redesigning board structure and function, informing the public, collecting data on the health professions, assuring practitioner competence, reforming the professional disciplinary process, evaluating regulatory effectiveness and understanding the organizational context of health professions regulation.

FINDINGS
Five key assumptions about the health care industry that undergird health professions regulation need to be modified if they are to continue to provide a solid conceptual framework for regulation. 1) The move to specialization in health care has slowed and generalism is moving to the fore. 2) Health care markets have changed from local, geographically-based markets to regional, national and even international markets with the advent of telehealth practice. 3) In the past, it was assumed that there was a slow depreciation of health professionals’ knowledge and competence after they completed training. Now, a much more rapid depreciation of knowledge is assumed, thereby requiring provider verification of continued competence throughout their careers. 4) Previously, health care organizational structures were relatively small, local and tangible. Increasingly, health care organizations have merged, creating much larger organizations. 5) In the past, health care financing organizations interacted directly with health care providers. In the current health care environment, there are other entities such as health care delivery systems and utilization review organizations that mediate the health care financier--health care provider relationship.

The ad hoc Committee on Criteria has determined specific findings in seven areas:
Appropriate Criteria to be Applied in Determining the Need for Regulation of Any Health Care Occupation or Profession
Virginia has had criteria since 1983 for determining whether and at what level health care occupations or professions should be regulated. The criteria were last revised in 1991. In 1992, policies and procedures based on the criteria were adopted by the Board of Health Professions. The seven Virginia criteria are concerned with the following issues: 1) risk of harm to the consumer, 2) specialized skills and training, 3) autonomous practice, 4) scope of practice, 5) economic impact, 6) alternatives to regulation, and 7) least restrictive regulation. Virginia is unique, as none of its surrounding states or localities utilize written criteria to determine the need for regulation.

Virginia’s criteria for regulation have been consistently utilized and evenly applied in Board of Health Professions’ regulatory studies and recommendations for regulation over the years since 1983. Virginia’s use of written criteria, and policies and procedures based on these criteria, results in an orderly and fair process for applicant professions that desire to be regulated. Criterion #7, the newest regulatory criterion, adopted in 1991, emphasizes the importance of utilizing the least restrictive form of regulation possible, which is consistent with Virginia’s history of a laissez-faire approach to regulating commerce. A regular sunrise/sunset review process by the Board of Health Professions prior to instituting and renewing regulation would be helpful in ensuring that the Commonwealth maintains appropriate levels of regulation. The evidentiary basis on which the criteria are applied could be strengthened and made more consistent. Finally, the existing seven criteria remain suitable and appropriate for determining the need for regulation of any health care occupation or profession in the Commonwealth.

Promotion of Effective Health Outcomes and Protection of the Public from Harm
Health outcomes analysis is still in its infancy, although the body of knowledge about effective medical treatments is growing rapidly. Most such analyses are based on specific disease states and treatment modalities and not on the care provided by individual practitioners. Thus, health outcomes analysis is not currently useful as a criterion for determining the need for regulation, although it may become more useful during the next decade.

Accountability of Health Regulatory Bodies to the Public
Virginia ranks above average in its utilization of public members on health regulatory boards such as the Board of Health Professions and its constituent boards. Increasing public and organizational participation in the Board of Health Professions’ deliberations may improve its ability to mediate scope of practice disputes among the health professions. Several states provide for more, and for more accessible, public reporting of information on health professionals than Virginia provides. A Board of Health Professions with a stronger legislative charge to direct the individual professional boards may increase public accountability. Health professionals are increasingly accountable to employers, insurers and health care systems in addition to the health professions regulatory boards. There is a fragmentation of health regulatory responsibility in the Commonwealth among several health-related agencies.

Promotion of Consumer Access to a Competent Health Care Provider Workforce
Health care consumers desire more freedom of choice in their utilization of providers and therapies. Several health professional associations are seeking initial regulation or more restrictive regulation by the Board of Health Professions. There is currently no single primary database of health workforce practice-related information for Virginia. Continued provider competence is a major issue among the health professions, the public and a variety of regulatory and accrediting bodies today as there is widespread recognition that initial licensure to practice does not confer lifelong continued competence. Poor communication skills seem to be a major source of complaints regarding provider competence. There is no current consensus on how to measure and ensure such competence, although new testing instruments are under development. Continuing education requirements are losing favor as a means of ensuring continued competence.

Encouragement of a Flexible, Rational, Cost-effective Health Care System that Allows Effective Working Relationships Among Health Care Providers
Demonstration projects to evaluate new models of health professions’ practice and regulation are currently not permissible in Virginia unless they fall clearly within existing scopes of practice. General Assembly action on health professions regulation prior to any study by the Board of Health Professions renders the regulatory process less professional than it might otherwise be. New technologies and emerging health professions are changing relationships among health care providers and are affecting existing scopes of practice of currently regulated professions.

Facilitation of Professional and Geographic Mobility of Competent Providers
Within Virginia itself, current regulations do not restrict mobility per se. Conflicting state regulatory laws can create problems for Virginia providers, patients and insurers, however, particularly in border regions of the Commonwealth. Resolution of interstate telehealth licensing issues may expand the availability of telehealth services in the Commonwealth.

Minimization of Unreasonable or Anti-competitive Requirements that Produce No Demonstrable Benefit
Several professions have commented during the study on particular regulatory requirements they deem unreasonable or anti-competitive in nature, but there is no consensus that the overall current regulatory framework is particularly unreasonable or anti-competitive.

RECOMMENDATIONS
Based on the study analysis, the ad hoc Committee on Criteria has made sixteen recommendations in six areas to the full Board of Health Professions. A summary of each of the recommendations follows:

The Criteria
  1. The existing seven criteria remain appropriate for determining the need for regulation of any health care occupation or profession.
  2. More evidence-based information, both quantitative and qualitative, should be factored into the regulatory process in the application of the criteria.
    3.
  3. The criteria for determining the need for professional regulation should be codified in Title 54.1 of the Code of Virginia and strengthened by reference to §§ 54.1-100 and 54.1-311 A of the Code of Virginia. Further, the statutory mandate for this study in § 54.1-2409.2 of the Code of Virginia should be repealed.

Regulatory Mechanisms
  1. The Board of Health Professions, in consultation with the appropriate health regulatory board(s), should be required to review and to provide an opinion to the General Assembly prior to any change in the degree of regulation of health professions.
  2. The Board of Health Professions should regularly review the appropriateness of statutes and regulations as they relate to the scopes of practice of all health professions.

Board of Health Professions Structure
  1. The number of public members on the Board of Health Professions is sufficient.
  2. The Board of Health Professions should encourage the establishment of a process or an entity, or both, for the purpose of coordination and exchange among staff of state agencies and regulatory bodies that have responsibility for health care policy in the Commonwealth.
  3. The Board of Health Professions should establish a standing advisory committee comprised of representatives of integrated health care delivery systems, health care payers and employer purchasers of health care services, and practitioners and other persons as may be necessary to advise the Board on matters relating to the regulation and delivery of health professions services in the Commonwealth.

Flexible Regulation
  1. The Board of Health Professions should seek statutory authority to permit regulatory demonstration projects to be implemented with the advice and the consent of the appropriate health regulatory board(s).

Monitoring Health Professional Practice
  1. The Department of Health Professions should establish a Virginia health workforce database that is financed by funds other than those derived from regulated professions.
  2. The Board of Health Professions should regularly monitor, assess and report on emerging professions and technologies.
  3. The Board of Health Professions should identify and study the training, means of identification and utilization of unlicensed assistive personnel in the delivery of health care and make appropriate recommendations.
  4. The Board of Health Professions should monitor health care delivery systems and individual provider roles in these systems.
  5. The Board of Health Professions should encourage its constituent boards to explore innovative strategies to monitor the continued competence of their practitioners, to include, but not be limited to, such areas as practitioners’ communication, knowledge base development and diagnostic reasoning skills, and to report on their efforts on a regular basis.

Geographic and Professional Mobility of Providers
  1. The Board of Health Professions should encourage consistency in the Virginia health professions regulatory scheme, including increasing the consistency of Virginia’s entry-to-practice requirements for out-of-state providers among the health regulatory boards.
  2. The Board of Health Professions should encourage a coordinated and consistent regulatory approach among its constituent boards with regard to interstate telehealth activities.

CONCLUDING REMARKS
Virginia was the first colony to introduce regulation of health care professionals in colonial America. Since that time, Virginia has continued to be recognized by observers of occupational and professional regulation as a leader in the field. The Pew Health Professions Commission Report Reforming Health Care Workforce Regulation: Policy Considerations for the 21st Century, released in 1995, stimulated an extensive national discussion and review of health professions regulation. Virginia has responded to the Pew Commission’s challenge by undertaking its own study, which was mandated by the 1996 General Assembly.

The health care industry has changed, and the assumptions about this industry that undergird the health professions regulatory system have been reviewed by the ad hoc Committee on Criteria. A thorough and wide-ranging study of Virginia’s health regulatory system has been conducted in response to the General Assembly’s mandate. The regulatory criteria utilized by the Virginia Board of Health Professions, and Virginia’s entire health professions regulatory system, are generally appropriate. Sixteen recommendations have been offered by the ad hoc Committee on Criteria to improve the health professions regulatory system; recommendations that respond to the Pew Commission’s challenge and that, if adopted, will maintain Virginia’s tradition of leading the nation in innovative approaches to professional regulation.

AUGUST 1998 UPDATE
Significant progress in implementing the recommendations has been made since the 1997 CLEAR meeting. The Board of Health Professions accepted the report and adopted the recommendations during its September, 1997 meeting. Subsequently, the Board submitted the report to the Virginia General Assembly, which published it as House Document No. 8, Study of the Appropriate Criteria in Determining the Need for Regulation of Any Health Care Occupation or Profession. The Board also made the report one of the focal points of an April, 1998 strategic planning retreat among board members and staff. The retreat discussions reconfirmed the Board’s strong interest in implementing the study recommendations.

Several specific follow-up sections by the Board are listed below:

  1. The Board is proposing legislation for the 1999 General Assembly session that will codify the criteria.
  2. The BHP has revised its policies and procedures for regulatory studies to include more evidence-based information, both qualitative and quantitative, concerning health professions. Two approaches are being tested. The first application of these new evidence-based polices and procedures is occurring with the Athletic Trainer profession that is currently under regulatory consideration. The Board contracted with Research Dimensions, Inc. to perform a detailed review of the Athletic Trainer position, including job analysis that will rate the tasks that an Athletic Trainer performs by frequency and relative risk. The Board approved the methodology for this study in August.

The second approach to providing evidence-based information involves the Board contracting with an actuary to provide risk rating of the tasks of Athletic Trainers. This will be the equivalent of having the Athletic Trainer position rated for insurance purposes so as to calculate an insurance premium that can be compared to other health professions, such as EMT’s or physical therapists.

  1. The Board held a briefing session for key members of the General Assembly on the study recommendations. The Board held a strategic planning retreat recently that developed goals and objectives for the coming year. The Board has developed a work plan of specific activities with dates tied to the activities. The Board will attempt to remain proactive in this area by keeping key General Assembly members, who have a history of proposing health professions regulatory bills, apprised of developments in the regulatory landscape and by working closely with them throughout the year on proposed legislation.
  2. The Board, through its work plan, has assigned the development of a timeline for reviewing the statutes and regulations concerning scopes of practice to the Regulatory Research Committee (RRC). The RRC will handle this review by simultaneously studying groups of health professions with closely related scopes of practice. For example, the RCC might review all of the Behavioral Sciences professions as a group.
  3.  A new committee has been established in state government known as the Health Payment System Review Committee to provide some coordination among the various health regulatory agencies. This Committee will have representation from the Bureau of Insurance, the Health Department, the Board of Health Professions, insurance companies, employers, etc.
  4. The Board of Health Professions will propose a bill to the Administration that would allow regulatory demonstration projects. This bill will be introduced in the 1999 General Assembly session.
  5. A bill that was passed by the 1998 General Assembly required the Board of Medicine to develop physician profiles for all physicians in the Commonwealth. Several data fields to be included are medical school attended, medical specialty, board certifications, malpractice information, hospital privileges, languages spoken, insurance and managed care plan affiliations. The database will be on-line through the internet to facilitate consumer access and use of the information. The Board will seek a resolution from the General Assembly to provide funding for expansion of this database to professions other than medicine.
  6. Increased monitoring of emerging professions has been included in the Board’s 1998 work plan.
  7. Increased attention to unlicensed assistive personnel has also been included in the Board work plan. The Board of Nursing has proposed new nursing delegation guidelines that will be enacted within 90 days under the emergency regulations clause. The guidelines have been well received, although they do not specify whether certain tasks can be delegated to particular personnel. Rather, they clearly outline the process that must occur if tasks are to be delegated appropriately.
  8. The Board has issued a report on telehealth that endorses the nursing model – interstate compacts in which states agree to accept each other's licensees for telehealth consultation across state lines (Utah has already passed such legislation).

In addition to these ten activities, the Board intends to initiate a process to explore the issue of continuing competency.



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