Issue February 2, 2011

Mad medicine

Doctors, nurses resume fight over bill killed amid lavish lobbying, greed and smears

One of the most rancorous battles of the 2010 Kentucky General Assembly is expected to restart this week with the filing of a bill that allows nurse practitioners autonomy to prescribe non-narcotic drugs such as antibiotics, insulin and blood pressure meds.

Under current state law, they cannot prescribe without the written consent of a doctor.

Last session, twin House and Senate measures, which pitted nurses against doctors, stalled after spectacular debates stirred acrimony, allegations and admonitions.

At issue is the “collaborative agreement” for non-controlled substances, which a physician must co-sign before a nurse practitioner — a nurse with a master’s degree — may legally prescribe them.

At stake, both sides agree, is the health of Kentuckians.

“Nurse practitioners are well educated, thoughtful and competent care providers,” Beth Partin, a veteran family nurse practitioner in Adair County, testified of her colleagues before the Senate Licensing & Occupations Committee last Feb. 16. “Kentucky is a medically under-served state, and nurse practitioners are well able to address the growing needs of our citizens.”

Those growing needs are being driven by a variety of forces: The population is aging, there’s a sharp decline of primary care physicians, and as many as 50 million Americans will be newly insured when the individual mandate of the federal Affordable Health Act takes effect in 2014.

But physicians say expanding the role of nurse practitioners is the wrong remedy.

“Should very good nurses be granted, by legislation, the independent and autonomous ability to practice medicine?” asked Dr. Don Swikert, a family practitioner in Kenton County. “Are nurse practitioners who hang out their shingle pushing the boundaries too far? Do they have the training to function totally independently? I think that’s a basic question we disagree on.”

Nurse practitioners cite their annual requirement for continuing education in pharmacology and insist they merely want to treat a population plagued by high disease rates as best they can — within their scope of practice — and continue to refer patients who need more specialized care.

In October, after a two-year study on the future of nursing, an Institute of Medicine committee issued ammo for both sides:

“Nurses should practice to the full extent of their education and training” and “achieve higher levels of education and training.”

If the issue were confined to qualifications, the solution might be less elusive.

But it’s about business, too.

Competing for patients

“Will the independent nurse practitioners be competing directly with physicians?” Dr. Greg Cooper, a family practitioner who serves Harrison and Pendleton counties, asked during the committee hearing. “It sounds like that’s the case. I believe the family physician is at the heart of quality and cost-efficient health care.”

Cooper noted that his rural clinic is open on Saturdays, but not before Sen. Dan Seum, R-38, seized on the limited availability of physicians.

“It seems to me that the medical establishment — the doctors — have created a vacuum of their own, even in the most populated areas. I defy anybody to find a doctor on a weekend, a holiday,” Seum said. “If I had a nurse practitioner down the road, why would I not go there rather than the emergency room, which is very, very expensive?”

“We talk about the nurse practitioners as if they’re all family physicians,” the doctor replied.

Then thunder struck: Now-retired Sen. Gary Tapp, R-20, of Shelby County, the sponsor of Senate Bill 75, the measure under siege, exploded.

“Well, that’s the problem,” he said. “We’ve got seven or eight counties in the state of Kentucky that have no family physician — and the family physicians, as they used to be, don’t exist anymore. You know, you don’t have the guys who would come to the house on Saturday night or Friday night or whenever, or call him at home and you could get a hold of him and get the treatment you needed. They’re not there anymore!

“There are too many specialists,” Tapp added, “and not enough family physicians.”

That’s part of a perfect storm brewing nationwide, according to health care policy analysts. It’s detailed in a 2009 report, “Remaking Primary Care: From Crisis to Opportunity,” by the New England Healthcare Institute.

Primary care physicians are paid less than specialists. As their proportion shrinks (from 50 percent in 1950 to 30 percent in 2007), higher workloads and longer hours repel existing and potential primary care doctors.

At least one chronic illness afflicts 87 percent of Americans between 65 and 79.

In 2020, according to the U.S. Census Bureau, one in four Kentuckians will be 60 or older.

And with the universal insurance mandate, the increased demand for primary care is expected to overwhelm the supply of providers.

The American Association of Medical Colleges forecasts a shortfall of as many as 46,000 primary care doctors by 2025.

“It’s important that we keep Kentucky a state attractive to family practitioners,” Dr. Cooper testified.

In response, Tapp said, “We’re not doing a very good job of attracting ‘em if we’ve got counties without ‘em, that’s for sure.”

By contrast, almost half of Kentucky’s nurse practitioners are practicing in rural areas, and there are some small towns in which they are the sole care providers.

Their collaborators often live far away — some, in other counties.

“These physicians do not see the patients in the nurse practitioner’s practice nor do they oversee any aspect of that nurse practitioner’s practice,” Partin testified. “However, they do charge the NP a fee for signing the agreement. The fees vary, but we have reports of NPs who pay $6,000 a year. One noted that she pays $1,500 a month and another who pays 7 percent of her net income.”

In those isolated places, collaboration is a fantasy — an ideal that ignores the harsh realities of the sparse medical marketplace.

“Finding a physician who will sign the agreement, high fees … and the concern that the physician may withdraw from the agreement at any time” all create barriers to access, Partin added.

Broken negotiations, impasse

Another storm erupted at the end of the Senate committee meeting after Robin Webb, D-18, of Carter County, expressed disappointment over the deadlock earlier defined by Dr. Swikert.

“I feel like I’m in Congress when I hear we can’t work together on this one health issue here,” Webb said. “I have a little indigestion over that that I might need some Pepcid for later on.”

Swikert was a player in the negotiations that led to the 2006 legislation, Senate Bill 65, which gave nurse practitioners prescriptive authority for controlled substances through a separate collaborative agreement. Last year’s Senate Bill 75 originally sought to eliminate that requirement, too, but was amended after the nurses agreed to preserve it.

“It’s only been four years, but the original intent of this bill was to do away with all that,” Swikert said. “And then to retrench and come back part way and make us look like we’re not willing to work on that, I think that’s unfair.”

“Dr. Swikert, I take a little bit of offense to that, and let me tell you why,” said Sen. Tapp. “You all put out words, on several occasions, that the nurse practitioners would not sit down and talk to you about this legislation. I know that is not true whatsoever.”

And to that, Swikert replied, “I can tell you that after the last time we went around, we had a number of physicians resign from the KMA … I got a constituency that is very upset with me, so I think I’ve earned that right to say that we tried to work with you, senator.”

The 2006 passage of Senate Bill 65 stands in contrast to the “real results” listed on KMA’s website: “KMA member physicians’ advocacy has resulted in defeat of multiple attempts by non-physicians to expand their scope of practice.” And yet, “Through legislation, KMA works to protect the practice of medicine in Kentucky and assure that patients have the access to care they deserve.”

The KMA budgeted $60,000 for lobbyists, which made it one of the top spenders of the 2010 regular session, according to the Legislative Research Commission.

Senate Bill 75 was not put to a vote. It was heard only for discussion. When it became clear to proponents that it would die on the Senate side, they cloned it into House Bill 556, which was heard before the House Health & Welfare Committee on March 4, 2010.

This time, two physician legislators weighed in.

“I think it’s to the benefit of the NP to have collaboration with a physician so that basically, if she does have a question or something, she’ll have somebody to call or talk to or seek advice from,” said Rep. David Watkins, D-11, a Henderson physician who doesn’t charge the nurse practitioner with whom he works.

Then came a spirited exchange between Rep. Bob DeWeese, R-48, a retired physician, and Rep. Mary Lou Marzian, D-34, a retired registered nurse from Louisville and sponsor of the bill.

DeWeese: “I think if we kept the collaborative agreement in, that it would make this bill a lot better.”

Marzian: “Well, I think there have been obstacles … with the charging.”

DeWeese: “Well, we can handle that type of thing.”

Marzian: “Dr. DeWeese, they can’t practice outside their scope of practice.”

DeWeese: “I know that, but we keep expanding their scope of practice.”

Marzian: “And then, when you look at how many kids are in poverty here, how many people are in poverty in Kentucky that need access to medical care, this is what it’s about is access. Seventeen states have done this, so it’s not anything that’s new.”

Bill Doll, KMA lobbyist since 1975, told the panel that nurse practitioners wanted the collaborative agreement (as opposed to supervision, which some states require) when they won prescriptive authority for non-controlled substances in 1996. “They’re the ones who lobbied for the collaborative agreement, and that’s why it’s in there. And now they wanna do away with it. And that’s something that we’re resisting.”

Rep. Susan Westrom, D-79, of Lexington, later said, “Although I wasn’t here, I suspect that there was a collaborative agreement simply because the nurse practitioners would never have been able to expand their scope of practice without one.”

She described the controversy as a “turf battle.” It’s a term Rep. Marzian echoed in an interview with LEO, saying, “To the KMA, it’s all about turf and money. They pretend it’s about quality.”

Market share is clearly on the KMA’s radar, but Marzian tells LEO, “With the health care reform, there’s plenty of patients to go around.”

Money matters

In 2008, the median salary of nurse practitioners in Kentucky was $81,397; for family and general practice physicians, $156,010; for pediatricians, $167,907; and for psychiatrists, $144,020.

As the House committee hearing progressed, money took center stage.

Rep. Westrom recalled her former role as a physician recruiter in Eastern Kentucky, where “there were no amenities to entice” them.

“The reality is the primary care physicians and the family physicians are slammed every time they go to work. And yet there are sub-specialties who provide a different type of care … who don’t have to work like dogs, like these other guys do, and get paid much, much more,” she said.

“We have a continued challenge to make sure that the health care needs in this state are provided, but we also have to look at the budget. We have to determine how high our Medicaid budget’s expanding every single year. How are we reasonably going to be able to adapt to that and provide those services and find that money?”

Kentucky’s Medicaid program costs $6 billion per year and faces a shortfall of up to $600 million.

“Studies have shown that costs to Medicaid programs decrease as much as 24 percent when APRNs (Advanced Practice Registered Nurses) are allowed to practice at full scope,” Susan Lynch, spokeswoman for Florida’s nurse practitioner PAC, wrote in Tallahassee’s daily newspaper, Sunshine State News, on Jan. 10. “This cost savings is realized by reduced emergency room visits, reduced unnecessary operations, and improved outcomes of care.”

The research arm of Florida’s legislature estimates that “potential cost-savings from expanding APRN and physician assistant scope of practice range from $7 million to $44 million annually for Medicaid, $744,000 to $2.2 million for state employee health insurance, and $339 million across Florida’s health care system.”

Exorbitant fees revisited

As the House hearing continued, Rep. Darryl Owens, D-43, of Louisville, queried KMA lobbyists Doll and Marty White on how strongly they felt about physicians charging exorbitant fees for collaborative agreements.

Doll: “… I wouldn’t want to make some broad, sweeping statement that, you know, ‘We’ll put a stop to that tomorrow,’ but it sounds like something, as I said earlier, that clearly warrants a second look.”

White: “… If that’s going on and it’s a concern and it’s abusive, I would report it to the Board of Medical Licensure.”

Owens: “We’ll, if it’s not illegal, then I don’t know what you would report, I mean, if you haven’t set any guidelines saying it’s unethical or it’s not proper.”

White: “Well, that could be in the AMA (American Medical Association) ethical guidelines. I would report it.”

The problem with reporting, Owens noted, is the risk of a physician retaliating by rescinding the agreement.

Lawmakers said they didn’t anticipate greed.

Rep. Addia Wuchner, R-66, a Boone County RN, said, “I would propose that there could be legislation that said that any party of a collaborative agreement would be prohibited from charging a fee or paying a fee …”

The future of care

Since the 1996 inception of the collaborative agreement in Kentucky, the explosion of portable technology has reduced its need.

Medical professionals routinely use Epocrates — a handheld diagnostic reference — and consider it indispensable.

“Having this data close at hand allows me to give my patients the best possible care quickly,” says Sonia Rudolph, a nurse practitioner at a retail clinic and instructor at Jefferson Community & Technical College. “I don’t need to call someone to give me the updated information; I can research it myself.”

Epocrates Inc. was founded in 1998. By 2006, it had 525,000 users worldwide, including 200,000 U.S. doctors. Since then, its base has doubled.

The proliferation of urgent care centers and retail clinics, staffed predominantly by nurse practitioners, also is changing the landscape.

Rudolph sees retail clinics as a place “to bridge the gap between patients seeking care in ERs for ear infections and those who don’t seek primary care for chronic conditions.”

“Every visit ends with, ‘If you continue to have problems, consult your primary care physician,’” Rudolph says. “Some folks feel that if they don’t have insurance, they can’t see a physician, and then we talk about sliding-scale clinics available to establish primary care.”

Lisa Carter-Harris, one of two nurse practitioners who staff a primary care clinic in a federally designated under-served area of Louisville, tells LEO, “We’re in Shively, where there aren’t a lot of providers that take Medicaid or Passport, so our patients would have to go downtown or farther out if we didn’t.”

Business is booming at her My Care Clinic, which opened 14 months ago and serves about 50 patients daily.

“We’re very big believers in following evidence-based practice and clinical guidelines, so if conditions warrant specialty care, we have no problem referring,” she adds, estimating that she refers “about 25 percent of the time.”

While studying to become a nurse practitioner, she was inspired by a physician-mentor who said, “You guys are the future of primary care.”

Among recent medical school graduates nationally, only 2 percent opted to work in primary care. By contrast, the raft of Kentucky nurse practitioners and nurse midwives has swelled by 270 in the past year.

“I think everyone may not agree on how to fix health care,” Rudolph says. “But we all agree the current system is broken. As an RN, I cared for patients in the hospital who could pay their electric bill or buy medication for high blood pressure, which was silently and painlessly destroying their bodies. Guess which one they picked? Whatever we can do to increase access to care and preventive medicine will save everyone in the long run, whether they have insurance or not.”

Meanwhile, the debate over collaboration persists.

As the House committee hearing continued, Rep. Owens focused on lobbyist Doll’s remark that, “We’re getting close to a climate that’s not conducive to having primary care physicians in this state, and it’s pieces of legislation like this that sort of set that peg.”

Owens: “I guess the question is, in these states where they have broader parameters for nurse practitioners, whether there’s been a decline of physicians.”

Doll: “I don’t know, but … if I’m going to medical school and I see that enacted, I’m going to ask myself the question, ‘What am I doin’ here?’ I mean, why would I go to medical school?”

‘Innuendo and rumor’ against nurses

Whether alleged smear campaigns made any difference in killing last year’s bills is anybody’s guess.

Nursing witnesses sought to control the damage during both committee hearings.

In the Senate, Charlotte Beason, executive director of the Kentucky Board of Nursing, testified, “It has come to my attention that legislators are being told that pharmacists across the state are seeing … prescriptions … so poorly written (by nurses) that they had to call physicians to get ‘em straightened out. It’s almost impossible to correct innuendo and rumor.”

In the House, Sharon Eli Mercer, nursing practice consultant for the KBN, scrubbed another stain when she told the panel there had been only seven prescription-related disciplinary actions against nurses since 2006.

Rep. Westrom was still simmering when she explained her vote to the lobbyists: “You guys are surprised by the accusations that there’s a problem with these collaborative agreements, and it makes me question if you guys have even spoken, which concerns me a great deal.”

“Not very often,” lobbyist White sheepishly replied.

“Yeah, well, and I know sometimes it’s very difficult to speak to what you consider the enemy. I do want to congratulate you for not saying that there will be more drug addicts because of their expansion of their scope of practice … I’m really getting tired of that argument,” Westrom said.

“I’m going to vote ‘yes’ for it because I can’t wait to hear how well you guys work together.”

House Bill 556 cleared the committee 8 to 4, but was not called for a vote on the House floor.

They’ll be working together — or not — again this session.