2002 legislative and regulatory update - Health Policy Issues

AORN Journal,  Nov, 2003  by Frederick P. Franko

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Soaring liability insurance premiums for health care providers claimed the attention of state lawmakers across the country in 2003. Legislators enacted legislation for tort reform and sought other medical liability solutions. The net effect of the heightened attention to medical liability insurance and the spiraling budget shortfall in nearly every state has been to push most other issues, including those related to health care, to the background. In the midst of this maelstrom, AORN took positions on specific pieces of legislation.

Effective political activity requires clearly-defined objectives, so each year, AORN's Legislative Committee develops and recommends legislative priorities for the Association that relate to current legislative and regulatory issues at both state and national levels (Table 1). In turn, AORN's Board of Directors reviews and approves these priorities, which then steer AORN's public policy. The following is a legislative and regulatory update for 2003.

KEEPING THE RN IN THE OR

Nearly four years after Gov Gray Davis signed into law AB 394, an act that required the California Department of Health Services to establish nurse-patient ratios, the Department of Health Services issued revised proposed nurse-to-patient ratio regulations (ie, R-37-01). The 15-day public comment period ended July 17, 2003, and the expected effective date for the new regulations to go into effect is January 1, 2004. The regulations provide for minimum licensed nurse-to-patient ratios by unit type in general acute care hospitals. Proposed regulations that affect ORs state

   The surgical service operating room
   shall have at least one registered
   nurse assigned to the duties of the
   circulating nurse and a minimum of
   one additional person serving as
   scrub assistant for each patient-occupied
   operating room. The scrub
   assistant may be a licensed nurse,
   an operating room technician, or
   other person who has demonstrated
   current competence to the hospital
   as a scrub assistant, but shall not be
   a physician or other licensed health
   professional who is assisting in the
   performance of surgery. (1)

Legislation in Colorado, New Jersey, and Massachusetts, has proposed the establishment of specific minimum staffing ratios or standards for health care facilities or hospitals and the provision of one nurse to one patient in the OR. The legislation was defeated in Colorado and has made little progress in New Jersey and Massachusetts.

In midSeptember, SB 669 and its companion bill, HB 5049, was introduced in the Michigan legislature. This bill requires hospitals to develop a staffing plan that guarantees one RN for each patient in an OR. If the bill does not pass in 2003, it will be carried over to 2004. (2)

In at least a dozen states, legislation has been introduced that addresses staffing issues in health care facilities. To date, none of these bills has passed its respective legislature. In recent years, many state legislatures have avoided introducing legislation mandating specific nurse-to-patient ratios, as California did in AB 394. These states instead have sought to address staffing needs and overtime by requiring health care facilities to develop an acuity system. Proponents of this type of legislation cite the flexibility that it offers health care facilities to meet changing needs.

The following definition of "acuity system" in Missouri HB 264 typifies the acuity systems proposed in other states during the 2003 legislative session:

(1) "Acuity system", a system that:

(a) Predicts nursing care requirements for individual patients based on severity of patient illness, need for specialized equipment and technology, and intensity of nursing interventions required;

(b) Determines the amount of nursing care needed, both in number and skill mix of nursing staff required on a daily basis for each patient in a nursing unit; and

(c) Is stated in terms that readily can be used and understood by direct care nursing staff. (3)

ASSISTIVE PERSONNEL

New York. After four years of hard work, AORN finally realized legislative success in New York. On August 19, 2003, Gov George Pataki signed into law SB 5518, (Chapter 375 after being signed into law), which provides that the Commissioner of Health shall not establish a category of specialist assistant relating to the practice of surgery or practice in the intensive care unit. (4) This success comes on the heels of two trying legislative sessions in which similar bills supported by AORN passed both houses of the state legislature, only to be vetoed by the governor. Following the veto of the AORN-supported bill in 2002, Tracy Tress of Malkin & Ross, AORN's New York lobbyist, worked closely with the governor's office to forge a compromise acceptable to AORN, the governor, and other interested parties.

The new law contrasts sharply with regulations proposed by the New York Department of Health in February 1999. Those regulations would have created a new category of specialist assistant--the surgical assistant-and would have allowed surgical technologists to function as first assistants. AORN argued against that proposal, saying the creation of a new profession should not be accomplished through regulatory means, but through the legislative process. At the time SB 5518 passed, the regulatory proposal still sat in Gov Pataki's office, awaiting his approval since June 1999.