The political process

Introduction

Please do not skip this chapter just because you never intend to become involved in politics. You have entered medicine during a period of rapid and profound changes in health care delivery. Where there is change, there is politics. Although sometimes politics is described in disparaging tones, being involved in politics is nothing to be ashamed of because, in its truest sense, politics is the art of getting things done. Physician assistants (PAs) are masters at getting things done!

This chapter is not written for elected officials, professional lobbyists, policy wonks, or pundits. Because it deals with the political process of making laws and regulations, you will find frequent use of words such as most and usually. Just as there can be a good deal of ambiguity in law, there can be a good deal of it in the making of laws. This lack of predictability can be difficult for PAs because it may seem unscientific. After you work with the process for a while, however, you will be able to predict some outcomes that initially seemed unpredictable, and, as in medicine, you will become comfortable with some level of uncertainty. The chapter is divided into five parts:

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  Individual responsibilities

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  The role and importance of professional organizations

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  The legislative process

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  The regulatory process

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  Case studies

Because state processes are generally structured along the lines of federal processes, the description of the federal system precedes the description of state mechanisms. In the discussion of state activities, where and how you can exert influence is integrated into the text.

The word you is used frequently. Please do not interpret this to mean that anyone expects or wants you to take on the entire government alone. Although individualism is highly valued in our society, the fact is that government responds best to group influence. You can and should be an important part of the PA group.

This chapter aims to engage you in advocacy as a PA and presents this activity as a two-step process: become informed and become involved.

Individual responsibilities

As a PA, you have a personal responsibility to understand the political process and to use that knowledge to advance the interests of patients. There are many levels of involvement. At a minimum, you should stay abreast of current issues and trends in health care by reading journals, newspapers, and professional publications, and you should vote. You can also provide moral or financial support for the efforts of others who work on your behalf by becoming a member of a PA organization or advocacy group. You can become one of those workers yourself, participating in the government-related activities of PA and other health care organizations. You can seek appointment to a licensing board or run for public office at the local, state, or national level.

If running for public office is not for you, consider supporting a candidate whose positions on health care and other issues are best for patients and the profession. There are dozens of ways to support a candidate: become a campaign manager or an issues coordinator, host a fundraiser, canvas for votes, work on a phone bank to solicit supporters, organize a committee of “PAs for Candidate X,” speak at community functions in support of the candidate, distribute campaign materials, or work to “get out the vote” on election day. You can also donate to specific candidates or political action committees (PACs) focused on health care issues. There are even state and federal PACs focused on improving PA practice. Of course, voting is the easiest, and most important, way you can help improve PA practice through the political process.

If campaign work is not attractive or feasible, consider volunteering your services to individuals already elected to federal or state office. One valuable function you can perform is to advise elected officials or their staff members about health care issues affecting your community. All legislators are called on to make decisions on a wide variety of topics. Having a constituent health care expert as a resource is a great asset.

It is hard to overstate the value of having ongoing contact with elected and appointed officials. If legislators and others in government know you and understand the valuable role that PAs play in health care delivery, they will be more likely to come to your assistance when you need help. Your credibility will be enhanced if, in the past, you were involved with issues that were not self-serving, such as bicycle safety measures, disease prevention programs, or health care for the homeless. If you know someone has introduced legislation in these or similar areas, offer your personal support through a call, letter, or email to their office. Historically, PAs have been interested in broader health care issues because resolving them has benefited patients. If you maintain a genuine interest in patient welfare, rather than speaking up only when someone threatens your professional “turf,” you will earn genuine respect.

You can do several things to influence the legislative and regulatory processes, even when no issues in which you are interested are awaiting legislation. In fact, if you do these things routinely, you will enhance your visibility and credibility.

The first is to maintain contact with your elected representatives. You want them to know who you are and to smile when they see you coming. When you meet with an elected official, it is best to make an appointment and be prepared to discuss a specific issue. Of course, you should not wait until the busiest days of the legislative session, when everything is in turmoil, to make your visit. Personal contact with legislators when they are at home in the district or between sessions is most productive.

A personal visit is not the only option. You may read something about your representative’s pet project and contact him or her to voice your support (if, in fact, you are in support). Such support is often remembered. If you receive an interesting piece of information on health care that you think might be useful, pass it along. Once you have established contact with a legislator’s office, you can follow up with opportunities for additional contact. For instance, you can invite the legislator or their staff to tour your practice or to attend (or speak at) an event.

You may also do this with regulators, such as the people who sit on state boards of medicine or PA boards. Remember, regulators are all people who are trying to develop or maintain a level of expertise regarding health care delivery. They need information, so provide it. A good relationship with a legislator, a legislator’s staff person, or a regulator is invaluable.

Finally, support your state, specialty, and national PA organizations. This suggestion is not just another pitch for membership; it is a tactical imperative. When any organization testifies before a governmental body, one of the first questions often asked is, “How many people does your society represent?” The larger the number, the more credibility the organization is given. It is also important to know where your professional organizations stand on an issue before you go to your representative’s office to voice your opinion. If you are an active member, you may have already influenced the organization’s policy-making process. Even if you disagree with the group’s final determination, at least you will understand how and why it reached its decision, and you may choose to remain silent rather than undercut its efforts.

There is value in belonging to a professional organization. Organizations and their members have a symbiotic relationship. Organizations need you, and you need them. They know the legislative and regulatory processes, as well as what issues are under consideration, and they may have a professional staff and a lobbyist. You know the issues from a personal perspective because you confront them daily. Your professional perspective as a PA is essential and should be conveyed to lawmakers or regulators, and your association can help determine when it is time to call, write, or visit them.

Government regulates almost every aspect of your professional life. The most important law affecting you as an individual PA is one passed by the state and implemented by a state regulatory board or agency—the PA Practice Act.

Practice laws

Occupational regulation is the prerogative of the state, rather than the federal government. Each state licenses, certifies, or registers a number of different professions and occupations, everyone from physicians and architects to barbers and plumbers. The goal of occupational regulation is to protect public health and safety. For health care professions, this is done by granting licenses only to individuals who meet minimum standards of education and skill, defining a scope of practice, and disciplining those who break the law or fail to uphold certain professional standards. A licensing or regulatory agency can also suspend and ultimately revoke a health care provider’s license to prevent the public from being harmed by a negligent or incompetent practitioner. Lawbreakers may also face civil or criminal penalties.

PAs belong to a regulated profession. In broad terms, this means that an individual seeking to work as a PA must first obtain permission from the state (for the purposes of this chapter, the term state shall mean all 50 states, the District of Columbia, and the U.S. territories) and then abide by any conditions of practice that the state has established. For a time, as with other professions and occupations, the term that described the process by which states authorized PA practice varied across the country and included designations such as licensure, certification, or registration. Now, however, all states appropriately use the term licensure for PAs—the highest form of state professional regulation—thereby eliminating patient confusion and assuring the inclusion of PAs in important state laws that are applicable to licensed health professionals, such as participation in loan repayment programs, the provision of care during natural disasters, and the reporting of specified patient injuries to law enforcement. The requirements for securing licensure vary from state to state. Nevertheless, as a result of efforts by the American Academy of Physician Assistants (AAPA) and state PA associations, there is growing uniformity in the laws that govern PAs. Some states have even adopted the use of a Uniform Application for PAs, which can expedite the licensure process. That said, total uniformity is an unrealistic goal because each state writes its laws slightly differently and cherishes its prerogative to do so. Every regulated occupation must cope with these differences in style and content.

The basis for regulation of PAs is found in the language of the PA Practice Act (the law). The law may be included in the Medical Practice Act, which governs physicians, or it may be a separate section of the state statutes. The law is further supplemented by regulations issued by the regulatory and/or licensing board. Every PA should have a copy of the current state laws and regulations governing his or her practice, which may be obtained from the regulatory or licensing board or found on their website. Ignorance is no excuse if you are ever accused of breaking the law.

Who is responsible for licensing and regulating PAs? In most cases, the regulatory agency is the Board of Medicine, the same entity that licenses physicians. A few states have separate PA boards, and a handful of states have departments of education or professional regulation that regulate all health practitioners. A list of PA state regulatory agencies is available on AAPA’s website.

In the laws and regulations, you will find details about qualifications, applications and fees for licensure, scope of practice, requirements for PA practice, prescribing and dispensing privileges, criteria for license renewals, what constitutes a violation of the law, and the disciplinary measures that can be invoked in the event of a violation, as well as information about administrative procedures and due process. You may also find information on the composition, terms of appointment, and other powers of the regulatory board, allowing you to determine what role PAs play in the state’s regulatory system. Although every state has recognized the need for PA participation in the regulation of the profession, several different approaches are used. Most medical boards have PA advisory committees or a designated PA seat on the medical board. A few states have their own PA board. These approaches provide PAs with a way to participate in and contribute to the regulatory process.

The two universal requirements for obtaining licensure as a PA are:

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  Graduation from an accredited PA educational program

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  Passage of the Physician Assistant National Certifying Examination (PANCE), administered by the National Commission on Certification of Physician Assistants (NCCPA)

The NCCPA examination, although part of a voluntary, private sector certification process, functions as the national licensing examination for PAs. Every state requires that potential licensees have passed it. Although a few states test PAs on their familiarity with state law before issuing a license, no state administers its own examination to test clinical knowledge.

Your state license must be renewed on a regular cycle, every 1, 2, or 3 years. Some jurisdictions require that you provide evidence that you have maintained your NCCPA certification or that you have completed a minimum number of continuing medical education (CME) credits, and you will need to pay a renewal fee. Keep in mind that the NCCPA certification system must be dealt with separately; do not confuse it with your state license. To maintain certification by the NCCPA, you must pay the NCCPA a fee and register 100 hours of CME every 2 years. It is also necessary to recertify every 10 years by taking an examination. You may use the letters “PA-C” after your name only if you are currently certified by the NCCPA. If you do not have current certification, you may use “PA.”

The PA laws and regulations also include criteria for the formulation and function of care provided by PAs. Most state laws require the ready availability of the physician for consultation and, with rare exception, authorize availability via telecommunication. Although no state allows a PA to work independently (or without collaboration with physicians or other members of the health care team), no state requires that a physician must always be on site when a PA is providing care. Some states do, however, have on-site physician requirements when the PA is performing certain procedures. More requirements may also exist if the PA practices in an office or clinic separate from the primary practice location. The most effective state laws neither restrict patient access to care nor limit the PA’s access to physicians or other members of the health care team. This is best achieved when the laws and regulations authorize collaborative relationships, PA scope of practice and prescriptive authority, the ratio of PAs to physicians, and the necessity (if any) for the review of PA-generated charts, orders, or prescriptions to be determined at the practice level.

Every state permits those PAs who have prescriptive authority to sign prescriptions. The law or regulations may restrict the kinds of medications a PA may prescribe. The authority to dispense medications is also regulated by the state. Some states do not permit anyone other than a pharmacist to dispense drugs. Pharmacists vigorously protect this privilege and make good arguments for a separation of prescribing and dispensing functions. Therefore a physician’s or PA’s ability to provide patients with medications from a supply maintained in the office or clinic may be more easily justified in rural areas or other locations without pharmacy services. In nearly every state, giving patients drug samples that have been supplied by a pharmaceutical company is not the same as dispensing and is not subject to the same restrictions.

Regulation of the PA profession has been evolving ever since the first Practice Act was passed in the late 1960s. The founders of the profession made a conscious political decision to establish a system in which PAs were recognized under the licenses of their supervising physicians. Changes in health care delivery and the greater numbers of PAs, as well as the need for administrative efficiency, have persuaded most states to modify this approach. The more modern system, advocated by the AAPA, is one in which licensure is granted to PAs on the basis of their credentials (i.e., on proof of meeting the educational and examination requirements of the law). This structure greatly facilitates the rapid deployment of the PA workforce and diminishes administrative burdens for licensees, physicians, and the state.

PA regulation continues to evolve based in part on the availability of data and studies that confirm PA quality; changes in medical education that place greater emphasis on interprofessional training among medicine, nursing, pharmacy, and others; the transition of health care systems to “team” practice; and adjustments in the expectations of both physicians and PAs with regard to liability and the belief that PAs should no longer be considered the “agent” of the physician. These developments (and many more) have ultimately resulted in a more enlightened approach to the regulation of the profession as evidenced by (1) the largest employer of PAs in the country, the Veterans Health Administration (VHA), enacting guidelines for PAs practicing in Veterans Affairs (VA) medical facilities; (2) adoption (in 2014 and 2017) of a policy of the AAPA House of Delegates (HOD) on both the role of PAs within the health care team and optimal team practice (OTP) ( Box 10.1 ); and (3) revision of the AAPA’s Model State Legislation for PAs to reflect these policy changes, which describes best practices in the regulation of the profession.

On December 24, 2013, the VHA enacted a directive updating its policy on PA utilization, which included a new definition for PA practice. Among other things, VHA Directive 1063 defines a PA as a credentialed health care professional who provides patient-centered medical care to assigned patients as a member of a health care team. It also states that PAs practice with clinical oversight, consultation, and input by a designated collaborating physician. Lastly, it recognizes that although PAs are not licensed independent providers, they are authorized to practice with defined levels of autonomy and exercise independent medical decision making within their scope of practice. Thus the VA acknowledged that “supervision” does not accurately define the role of the PA. In a historic shift, the updated policy defined the PA-physician relationship as one of “collaboration” in which each member of the medical team works together based on their education and experience.

The VA directive kicked off numerous changes, beginning with the approval of new policy by the AAPA HOD, which has sole authority on behalf of the AAPA to enact policies establishing the collective values, philosophies, and principles of the PA profession. The HOD consists of voting delegates from 57 chapters representing the 50 states, the District of Columbia, the U.S. Virgin Islands, five federal services, 26 officially recognized specialty organizations, nine caucuses composed of individuals sharing a common goal or interest related to health care access or delivery, and the Student Academy. In addition, the current and immediate past House Officers are delegates-at-large with voting rights. Elected delegates have an effective voice in AAPA activities by making recommendations to the AAPA Board of Directors, submitting formal resolutions through the procedures outlined by the House officers, participating in open reference committee hearings conducted at the HOD meeting held during AAPA’s Annual Conference, and researching and reporting on the resolutions and testimony received. In the year after the enactment of the VHA Directive, the AAPA HOD amended its policy on the role of PAs to reflect that PAs are health professionals licensed or, in the case of those employed by the federal government, credentialed to practice medicine in collaboration with physicians. This significant policy change was made partly to guide PAs, AAPA leaders, and professional staff in their navigation of the rapidly evolving team-focused, value-based health care landscape but also to more precisely define the way in which PAs and their physician colleagues practice medicine. It thus illustrates the progression of the abilities of PAs as medical providers, which was previously predicated solely on the “supervision” structure. The change was also embraced to overcome the misconception held by some legislators, policy makers, physicians, and patients that, given their need for supervision, PAs were less safe or provided inferior care when compared with their physician counterparts despite numerous studies to the contrary. To date, nine states use a term other than “supervision” to describe how PAs and physicians work together and more states are in the pipeline to amend their laws and regulations to make similar changes.

After the adoption of its policy on the PA role in 2014, the 2017 AAPA HOD approved a new policy, often referred to as OTP. OTP occurs when PAs, physicians, and other medical professionals work together to provide quality care without burdensome administrative constraints. To support OTP, states would eliminate the legal requirement for a specific relationship between a PA, physician or any other health care provider in order for a PA to practice to the full extent of their education, training, and experience and end the disparities between PAs and other medical providers in professional regulation and payment arrangements. As of this writing, OTP has garnered significant support from national organizations, like the National Association of Rural Health Clinics and the Brookings Institution’s Hamilton Project. Both organizations released reports in support of the removal of restrictions to PA practice, including the agreement requirement. Additionally, the U.S. Departments of Health and Human Services, Treasury, and Labor released a joint report in December 2018, examining recommendations to improve health care marketplace competition. The report, titled “Reforming America’s Healthcare System Through Choice and Competition” includes several recommendations to improve PA practice and remove barriers to PA licensure. In the report, the three federal agencies agree with the basic tenets of OTP.

With each adoption of new policy, the AAPA’s Commission on Government Relations and Practice Advancement (GRPA) (formerly the Commission on Advocacy) was charged with the important task of updating the AAPA’s Model State Legislation for PAs (Model Law). First drafted in 1991, the Model Law was adopted by the AAPA to describe best practices in regulation of the profession, achieve regulatory efficiency, and promote consistency across states. Although it has undergone several revisions over time to incorporate changes in program accrediting agencies and to reflect the evolution of PA practice, it has always reflected two hallmark concepts: that PAs should be licensed to practice medicine and that PA scope of practice should be based on the PA’s skills, education, and experience. As of 2018, the updated Model Law recommends an administrative process in which a PA presents his or her credentials to a state regulatory agency and receives a license in return. The license is renewable, based on meeting state requirements. The Model Law does not propose that the regulatory authority approve or register collaborating physicians. Any licensed physician or group of physicians (MD or DO) may collaborate with a PA unless the physician’s ability to collaborate has been limited by disciplinary action.

The updated Model Law also revises PA practice and the language used to describe the profession in alignment with the AAPA’s policy, the Guidelines for State Regulation of PAs (Guidelines), to include a description of OTP. Under the amended Model Law, a PA’s scope of practice is established by the PA’s education, training, experience, and competencies. Consistent with revisions made in 2015, language describing PA scope of practice being determined by physician delegation remains deleted. Since its first draft more than 20 years ago, the Model Law has both authorized PA prescriptive authority, including controlled substances in Schedules II through V, and limited dispensing authority. This authority has been retained. In keeping with amendments made in 2015, language requiring the collaborating physician to assume responsibility for care provided by PAs is absent. Instead, PAs are responsible for their professional actions and are required to practice within the bounds of their competence.

Also in alignment with revisions made in 2015, the new model continues to reject the idea that a PA should be considered the “agent” of a physician. In the past, rather than amending health law outside the PA practice act, PAs sought to be able to perform specific regulated medical and surgical tasks as the “agent” of a physician. Current advocacy efforts seek to have PAs specifically named in all relevant health law, removing the need for “agency” language. The Model Law now states that PAs shall collaborate with, consult with, and/or refer to the appropriate member(s) of the health care team as indicated by the patient’s condition; the education, experience, and competencies of the PA; and the standard of care. The degree of collaboration is left to be determined by the practice, which may include decisions made by the physician(s), employer, group, hospital service, and the credentialing and privileging systems of licensed facilities.

As with the 2015 iteration, the Model Law removes the requirement that PAs practice with physician collaboration when responding to a disaster situation or participating in volunteer activities. The Model Law also presents a list of options for regulatory models, with the preferred option being a PA Board that is separate and independent from the state medical board or other regulatory body. The improved Model Law will serve as a guide for states looking to update PA laws and regulations.

A good state law is one that allows a PA’s scope of practice to be determined by what is within his or her education, training, experience, and competencies. It should neither limit a PA’s scope via a law, regulation, or licensure application that contains a list of permissible tasks that physicians may delegate nor narrow it by a system in which licensing board members are allowed, when reviewing PA practice descriptions, to arbitrarily delete certain procedures on the basis of their personal biases. Lastly, it should not be restricted by legislators who do not understand the depth and breadth of PA education and training. To build the framework for an ideal practice environment, the AAPA has distilled the essential components that create ideal PA practice laws into the Six Key Elements of a Modern PA Practice Act (Six Key Elements) ( Box 10.2 ). Although the AAPA believes the Six Key Elements are foundationally necessary and continues to work with state PA academies to enact them in all states, they are admittedly not enough to completely realize the full potential of PA practice. To do this, laws should reflect both the Six Key Elements and OTP.

Individuals: Part of the whole

This section provides information on the structure and mission of your professional organizations: the AAPA and the state PA academies. Many PAs also find great value in belonging to an AAPA specialty organization, caucus, or special interest group.

The AAPA, established in 1968, is the national professional society for PAs. At its headquarters in Alexandria, Virginia, a full-time staff carries out the organization’s major activities of advocacy and government relations, research and data collection, public education, publications, continuing medical education and professional development, employment, and other member services. One of the AAPA’s most important functions is to speak for the profession before the U.S. Congress and federal agencies. Even in a representative democracy such as the United States, it is difficult for one person to singlehandedly affect the shape of laws and regulations. It is generally true that legislators and other government officials are more responsive to organizations that convey the interests of a large group than they are to individuals. Efficiency, accountability, and credibility come into play here. Therefore the AAPA performs an important role when it voices the PA profession’s views on federal legislation and regulations.

Lobbying is done daily by the AAPA’s professional staff. At congressional hearings, during individual meetings with lawmakers and their aides, and at meetings with leaders in federal agencies, AAPA staff may be accompanied by PAs who are elected officers of the AAPA or who have special expertise or established relationships with legislators or regulators. Coordinating grassroots advocacy is an important part of the AAPA’s legislative strategy and success on Capitol Hill. Legislative alerts, AAPA social media channels, and AAPA publications are used to inform AAPA members about important issues or to request that they contact their congressional representatives or a federal agency about a particular subject. Annually, the AAPA invites members to attend a government affairs and leadership conference in Washington, D.C. that includes a day on Capitol Hill. The AAPA welcomes and relies on PAs from across the country to speak for the profession and the patients PAs serve and helps to make this effective by coordinating the profession’s federal advocacy efforts and providing training, support, and direction for its members as advocates.

On the state level, the interests of PAs are represented by state PA associations. These associations are chartered constituent chapters of the AAPA. Among its other projects, each state academy must advance the interests of the profession before the legislature, the licensing board, and other state agencies. Many PA state societies employ professional association management staff, lobbyists, and/or legal counsel. Nevertheless, even in the chapters with a significant number of paid employees, much of the substantive work is done by the members themselves. The AAPA’s advocacy and government relations staff helps chapter leaders with these projects by providing information, technical resources, and consultation services. For example, the AAPA supplies summaries of state laws, model language, fact sheets, and demographic data, as well as analyses of proposed rules and legislation. The AAPA can also assist state chapters by sending statewide email “legislative action alerts” on behalf of the chapter. The AAPA’s goal is to maximize the ability of PAs to provide care through appropriate state laws and regulations.