Legislative Alert: October, 2001
by Louise Browning, CAE
Executive Director and Lobbyist
Budget
Now that the dust has settled from the Legislature’s August 7 override of the no-new-taxes budget veto (66-33 in the House and 19-12 in the Senate), the fate of the tobacco funds has been sealed along with any hope for tax reform in the near future.
Legislators expected the Governor to bring them back in late October or early November for a special session, but Sundquist said he saw no use to call a special session unless there was reason to believe the Legislature would actually do something.
The budget used the $368.5 million in tobacco monies already accumulated and the $188.9 million to be received in this fiscal year. They set $100 million aside for a contingency fund in a Medicaid payment dispute with the Federal Government, but the money that some lawmakers wanted to spend on health care and farming communities is long gone.
So, what really happened? Daytime talk radio hosts Phil Valentine and Steve Gill can certainly take credit for the horn-honking protestors to an income tax and the near riot at the Capitol. As Lee Smith reported in the Tennessee Journal, “Gill and Valentine were like Tyrone Power in The Mark of Zorro, opening the palace gates so the peasants could join with the caballeros to crush evil and restore justice.” But more than likely it was promises made to constituents and pledges signed to oppose an income tax that had the most influence on the no-new-taxes vote.
What will happen next year? Many think legislators will try to tap into the highway fund, but the powerful Road Builders Association will have plenty to say about that. Expected annual tobacco fund payments won’t be available, as they are committed to recurring items in the budget. Only time will tell.
BME Regulations
The Board of Medical Examiners has proposed a 16-page set of new rules addressing everything from soup to nuts, including a section that will vastly alter health care delivery to thousands of patients in Tennessee if they are successful.
If approved, one of the rules (printed in its entirety below) will prevent advanced practice nurses from owning clinics and contracting with a physician for supervision to meet the requirements of the current medical board supervision rules (0880-6). APNs have owned clinics and contracted with MD supervisors for years, but suddenly this has become an ethical issue with certain physicians who serve on the medical board and in leadership positions at the Tennessee Medical Association.
Their argument is that it is unethical for physicians to be dependent upon payment from an APN for supervisory services, as physicians may not supervise appropriately under these conditions. Also, the APN then “doctor shop” until he or she locates the physician who will agree to supervise them as much or as little as the APN wishes, therefore affecting the quality of care.
The example often used to illustrate the inappropriateness of this arrangement is a legal one. The board attorney and the TMA attorneys have reminded us that paralegals cannot open a law office and hire an attorney to provide supervision of their practice.
If there is anything more inappropriate in all of this than the language in the proposed rule, it is the ethical argument about contracting and the comparison of apples and oranges in the above paralegal example.
As proposed, this rule will not only affect any contractual arrangement for supervision with an individual, but also with a group, company, corporation or other entity that provides services to persons who are not clearly the patients of the physician.
Advanced practice nurses provide services to thousands of patients in Tennessee who cannot be classified as patients of the supervising physician, and some are serving as the only TennCare provider in the community or the county.
The board will hold a public hearing to hear testimony in support or opposition to all of the rules in this package. The hearing will take place in the Cumberland Room on the Ground Floor of the Cordell Hull Building located at 425 5th Avenue North, at 2:30 p.m. (C.D.T.) on October 22.
TNA has been working hard to rally nurse practitioners, patients, and physicians who are supportive of contracting with nurse practitioners to attend and present testimony, or to mail written testimony to Mr. Jerry Kosten, the Regulations Manager, at the above address. By law, regulatory board members are not required to attend these hearings, and they usually do not do so. However, the regulations manager does convey to the board the response to the hearing. He records the testimony on audiotape and duplicates any written testimony for the board members, so it is important to take advantage of this opportunity to respond to these rules.
Universities such as Vanderbilt, ETSU and UT are up in arms for fear it will affect the operation of their school-based clinics, primary care clinics, and birthing centers. We have the support of the Tennessee Hospital Association, the Tennessee Hospital Alliance, the Primary Care Association, the Tennessee Health Care Campaign, and the Rural Health Association. We fully believe we will be able to stop this proposed rule in its tracks.
The rule that is the culprit (below) is entitled “Employment of Physicians” and is No. (9) on page 9 of the rules document, particularly (a)2(ii) is problematic.
Substance of Proposed Rules
New Rules
(9) Employment of Physicians –
(a) Medical Orders, Referrals or Providing Supervision, Responsibility and/or Control – Throughout Tennessee Code Annotated, Title 63 and 68 there are provisions of the law requiring that identified health care practitioners may provide services or practice only upon the order of, or pursuant to referrals from, or under the supervision, control and/or responsibility of a licensed physician.
1. A physician cannot issue effective and ethical medical orders, or make effective and ethical referrals, or exercise effective and ethical supervision, responsibility and/or control as an employee of, or incident to any contract of employment for the purposes of issuing medical orders to, or making referrals to, or providing supervision, responsibility and/or control with any health care professional, or group, company, corporation or other such entity comprised thereof whose practice is required to be performed, or whose services are required to be rendered, pursuant to the order of, or pursuant to referrals from, or under the supervision, or responsibility and/or control of a physician.
2. It shall be a prima facie violation of T.C.A. § 63-6-214 (b) (1) for a physician to:
(i) Be an employee of such health care professionals, or group, company, corporation or other such entity comprised thereof who provide their services to persons who are not clearly identifiable as patients of the physician for the purpose of issuing orders, providing referrals or providing supervision, or responsibility and/or control.
(ii) Enter into a contract for the issuance of orders to, or the making of referrals to, or the provision of supervision, responsibility and/or control for such health care professionals, or group, company, corporation or other such entity comprised thereof, who provide their services to persons who are not clearly identifiable as patients of the physician.
(b) Nothing in this rule shall be construed as
1. Affecting the employment or contract provisions, or services incident thereto, of T.C.A. §§ 63-6-204 (d) or (e) or 68-11-205 (b) or (c); or
2. Affecting contracts entered into by physicians for the employment of other health care practitioners for the provision of their health care services to the patients of the employing physician.
[Statutory] Authority: T.C.A. §§ 4-5-202, 4-5-204, 63-6-101, 63-6-204, 63-6-214, and Public Chapter 327 of the Public Acts of 2001.
Advanced practice nurses need to stay tuned to the TNA-APN listserv for updates, and those APNs who are not currently subscribed are urged to go to TNA’s website, select the “Advanced Practice” section, and subscribe. This is the only mechanism TNA has to keep you up to date on this and other issues that affect your practice.
