Legislative activities at both the state and federal levels have kept AORN members, the legislative Committee, and staff members from AORN's Government Affairs Department busy in 2004. The challenges and successes of this year have established the framework for public policy efforts in 2005.
All legislative activity at AORN is guided by the organization's statement of legislative priorities. This statement is reviewed and revised annually by the legislative Committee, and any recommendations for changes are sent to the Board of Directors for approval. In 2004, the priorities were written as an acronym--KEYS--and promoted as 'KEYS to patient safety and public policy for perioperative nursing,' The legislative priorities for 2004 were as follows.
* Keep the RN in the OR.
* Enforce and protect scope of practice.
* Yes to collaboration.
* State and federal legislation for RN first assistant (RNFA) reimbursement and emerging issues.
This acronym will continue to be used in 2005.
Now that it is understood who controls the White House, Congress, and state legislatures, the legislative Committee is considering addressing the issue of medical liability as a specific area for action. Pursuant to a 2004-2005 charge, the legislative Committee is conducting research and considering recommendations for possible action by the AORN Board of Directors at the February 2005 meeting.
STATE ISSUES
The expression 'Keep the RN in the OR!' speaks both to laws pertaining to the RN in the circulator role and the general goal of all legislative priorities, so it is first on the list of priorities. Whether AORN is dealing with concerns about unlicensed assistive personnel, working with other associations to address the nursing shortage, advocating for reimbursement of RNFAs, or looking at future legislative possibilities, the common purpose is to keep the RN in the OR.
Currently, 31 states have some form of regulatory language regarding the RN in the circulator role. Earlier this year, the Board of Directors expressed its commitment to significantly expanding the level of state activity focused on ensuring the RN in the circulator role in all 50 states. This legislative goal is intended to complement other state issues on which AORN will remain active (ie, certification and licensure concerns, RNFA reimbursement). The objective is to maintain advocacy and lobbying in the states where AORN currently is engaged and to implement plans for grassroots advocacy by members and professional lobbyists in at least four additional influential states. These states would be considered bellwether states (ie, states where legislation historically tends to set a trend or serve as a model for other states).
To identify these states and manage this plan, Catherine Sparkman, has joined the Government Affairs Department at AORN as a full-time consultant. Sparkman has more than 20 years' experience in federal and state law pertaining to health care, corporate organization, professional malpractice, hospital administration, managed care financing, and medical liability. She is an attorney who served as vice president of and general counsel for Rocky Mountain Health Care Corp, Denver, which managed Blue Cross and Blue Shield plans in Colorado, New Mexico, and Nevada. In that role, she supervised media and governmental relations, selected lobbyists, drafted language for proposed legislation, coordinated legislative strategy, and acted as the corporate liaison to state and federal officials for Medicaid and Medicare issues. Sparkman also has worked extensively on liability and medical malpractice reform. Renewed national commitment and additional staff expertise will reinforce advocacy of public policy by AORN in 2005.
FEDERAL ISSUES
In 2004, federal legislative activities at AORN focused on public awareness of National 'Time Out' Day, funding for the Nurse Reinvestment Act, and Medicare reimbursement for qualified RNs who first assist. These issues were high-lighted at the Public Policy Conference and Advocacy Day, Sept 20 and 21, in Washington, DC. The 'Health Policy Issues' column in the November 2004 AORN Journal reported on this event? That column includes the text of H Res 682, introduced in June by Rep Mark Udall (D-Colo) to support the goals of National 'Time Out' Day and to promote the adoption of the Joint Commission on Accreditation of Healthcare Organization's Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery.
Getting results. Since Advocacy Day and as a result of AORN members' visits with members of Congress in the nation's capital, two senators have indicated their interest in introducing a companion bill in the US Senate. Sen Mary Landrieu (D-La) contacted Rep Udall recently to ask about using identical language, and her office is working to determine the best time to introduce a resolution. It could be introduced during a lame-duck session of Congress (ie, the period after the national elections when incumbent members meet regardless of whether they will return in January as part of the 109th Congress). Sen Dick Durbin (D-Ill) also expressed an interest in introducing a companion resolution.
The value of involvement. AORN is a member of Americans for Nursing Shortage Relief (ANSR). In 2004, AORN supported $205 million in funding for fiscal year 2005--a figure arrived at by a consensus of nursing organizations--for programs authorized by the Nurse Reinvestment Act. This figure was intended not only to provide funds for these important programs, but to show unity among nurses to federal policy makers. Actual funding for fiscal year 2005 in the federal budget was projected to be much less, probably $143 million. The final budget had not been determined by the time this issue of the Journal went to press.
On Oct 21, AORN participated in an initial conference call held by ANSR to discuss the federal budget for fiscal year 2006 and the consensus figure to be promoted by nursing groups in 2005. AORN routinely participates in these discussions, and will provide updates in the coming months.
In January 2005, the Medicare Payment Advisory Commission (MedPAC) will release a report to Congress detailing its study of proposed Medicare reimbursement for certified RNFAs (CRNFAs). The report and study were mandated by the Medicare Modernization Act of 2003. Representatives from AORN met with MedPAC staff researchers in July to speak about the CRNFA credential and attended MedPAC's public meetings in September and October.
AORN members offered public comment at the September meeting, and before the October meeting, AORN sent each of the MedPAC commissioners an informational packet describing the background of CRNFAs and the arguments for including CRNFAs on the list of nonphysician providers eligible for Medicare reimbursement for first assisting. The cover letter that accompanied the packet included the following points.
The pool of qualified providers increases by allowing direct reimbursement of CRNFAs, thus improving access to safe, quality surgical care. However, there is no incentive for more procedures since the decision to use a first assistant is made by the surgeon, not the first assistant. Allowing direct reimbursement for a CRNFA is cost neutral and may even be cost effective, because CRNFAs are nonphysician providers (NPPs). Currently, physicians who first-assist are reimbursed by Medicare at 16% of the surgeon's fee, and eligible NPPs are reimbursed at a rate of 13.6%. (2)
The recent General Accounting Office report on 'Assistants-at-Surgery' noted that NPPs in 1997 were paid $16 million by Medicare for assistant-at-surgery services, and $54 million in 2002. Physicians were paid $166 million in 1997, and $104 million in 2002. During these five years, physician payment went down by $62 million and NPP payment went up $38 million (a savings to Medicare of $24 million). During this time, the number of NPPs increased almost 200%, while first-assisting physicians declined by 23%. (2,3)
Although there is no federal mandate for such reimbursement, 10 states currently have laws or regulations providing third-party reimbursement. None of these require the CRNFA certification, and none has documented any increased costs for payers as a result of legislated reimbursement for [RNFAs]. (2)
The MedPAC is highly sensitive to cost concerns, given the extraordinary federal budget deficit and its own requirement to provide Congress with cost estimates for any recommendation. AORN has worked diligently in 2004 to obtain a favorable recommendation from MedPAC on Medicare reimbursement for CRNFAs. A legislative alert will be posted on AORN Online as soon as the MedPAC report on this study is released.
LOOKING FORWARD
As always, AORN will continue to advocate for its members and to keep the value of perioperative nurses in the minds of those who influence decisions about health care-related issues. If you have ideas for advocacy efforts in 2005, you may contact AORN's Government Affairs Department at (800) 755-2676 x 233. Together, we will continue to make a difference for perioperative nurses.
2004 STATE PUBLIC AFFAIRS SUMMARY
Following is a summary of state legislative issues addressed by AORN in 2004. It corresponds to the four points of the legislative priorities--keep the RN in the OR, enforce and protect scope of practice, yes to collaboration, and state and federal legislation for RN first assistant (RNFA) reimbursement and emerging issues.
Keep the RN in the OR
Florida--Progress continues to be made on the issue of requiring the RN in the circulator role in hospitals. Armando Riera, RN, BSN, CNOR, has contacted the Florida Nurses Association and the Florida Organization of Nurse Executives seeking their support for a regulatory change or a legislative effort. Preliminary talks have taken place with two legislators as possible bill sponsors should the legislative route be taken.
Georgia *--The focus is on developing, introducing, and passing RN-in-the-circulator-role legislation. AORN's lobbyist has primed key state legislators for this issue, and a bill sponsor for 2005 is being sought.
Massachusetts *--A nurse-to-patient staffing bill, HB 1282, was introduced in the legislature with the support of the Massachusetts Nurses Association (MNA). AORN worked with the MNA to accept language sensitive to the perioperative setting. The bill failed to pass during the 2004 legislative session, but staffing legislation is the top legislative priority of the MNA, and it is very likely that new legislation will be introduced in 2005.
New York *--The current language in S 4713/H Res 8560 is confusing and open to interpretation, and AORN is working with the New York State Nurses Association to improve it. AORN also has developed a proposed change to the current New York regulations, which are inadequate to ensure the RN in the circulator role.
Oregon *--AORN is working to introduce RN-in-the-circulator-role legislation in 2005. AORN's lobbyist and members in the state currently are meeting with legislators and candidates for the state legislature to achieve passage of this bill.
Texas--AORN's goat in Texas for 2005 is the passage of RN-in-the-circulator-role legislation and the defeat of surgical-technologist-licensure legislation. There is a considerable support base of AORN members in Texas.
Virginia--A 'Petition for Rule-Making' was submitted with the Virginia Board of Health to have a circulating nurse in each OR. The Virginia Board of Health discussed the issue at its public meeting in October 2004. AORN favors this regulation, with support from the Virginia Nurses Association and the Virginia legislative Coalition. The Virginia Hospital and Healthcare Association opposes the regulation. AORN was hoping for support from the Virginia Organization of Nurse Executives, but that organization has indicated it will remain neutral
Enforce and protect scope of practice
Illinois *--Senate Bill 354 passed in July of 2003, becoming Public Act 93-280, Registered Surgical Assistant and Registered Surgical Technologist Title Protection Act. This law explicitly states, 'This is title protection and not licensure.' It also states under the definition of 'direct supervision' that 'a registered professional nurse also may provide direct supervision within the scope of his or her license.'
Kentucky--The Kentucky legislature passed S 206, an act for certifying surgical assistants. The legislation originally was to license surgical assistants but changed to certification as a result of grassroots efforts by AORN members in the state. It establishes title protection for 'Kentucky Certified Surgical Assistants.'
Tennessee--AORN tracked the following three sets of legislation during the 2004 legislative session.
** Licensure of surgical technologists (ie, HB 2259/SB 2182)--These did not pass.
** Surgical technologist certification (ie, HB 1909/SB 1916)--These did not pass.
** Setting criteria for surgical technologists lie, SB 2181/HB 2232)--These passed and became law lie, Public Act Chapter No 532). Individuals employed as surgical technologists now must meet certain criteria.
Yes to collaboration
Most state legislatures meeting in 2004 considered several bills concerning the nursing shortage. Many of these include state initiatives to add faculty members to state-funded schools of nursing and to promote public awareness of this issue. AORN encourages members to be active with their state nurses associations and to participate in task forces, study groups, and advisory panels established by state lawmakers regarding the nursing shortage. AORN distributed copies of policy profiles, legislative priorities, and the brochure 'Protecting Surgical Patients in Your State' to legislators and staff members attending the National Conference of State legislatures meeting in Salt lake City in July. AORN, along with five other nursing specialty organizations, hosted a reception for meeting attendees.
State and federal legislation for RNFA reimbursement and emerging issues
Illinois--During the 2003 legislative session, HB 3618 passed. This amended 'The Ambulatory Surgical Treatment Center Act' and became effective on Jan 1, 2004, as Public Act 93-352. It states that
** payment for services rendered by an assistant in surgery who is not an ambulatory surgical treatment center employee shall be paid at the appropriate non-physician modifier rate if the payor would have made payment had the same services been provided by a physician [and]
** payment for services rendered by an assistant in surgery who is not a hospital employee shall be paid at the appropriate non-physician modifier rate if the payor would have made payment had the same services been provided by a physician. (1)
Illinois essentially joins 10 other states (ie, Florida, Georgia, Kentucky, Louisiana, Maine, Minnesota, Rhode Island, Texas, Washington, West Virginia) in requiring some level of reimbursement to RNFAs, but this legislation also provides reimbursement for surgical assistants.
Iowa--House Bill 2184 would have provided third-party payer compensation of certified RNFAs, but the bill never made it out of committee. The legislative session ended, so the bill will have to be reintroduced.
Massachusetts *--An act regarding reimbursement for RNFAs, SB 672, did not pass and will have to be reintroduced in 2005.
Missouri--Several years ago, a legislator who also is a surgeon put an unfriendly amendment on an RNFA reimbursement bill, effectively killing it. In 2003, an RNFA reimbursement bill did not advance because of the state's budget situation. In 2004, AORN took a different approach by supporting legislation that defines the RNFA and authorizes the State Board of Nursing to promulgate rules for certification. This was met with opposition by the lobbyist for the osteopathic physicians in the state.
New Jersey--A set of companion bills (SB 579/AB 1600) for RNFA reimbursement was introduced. AORN is hopeful that AB 1600 will be heard in committee before adjournment.
New York--Assembly Bill 9143 for RNFA reimbursement was introduced in 2003 and carried over to 2004. This legislation is undergoing extensive revision to ensure that all areas of the state's complex insurance code are covered.
Pennsylvania--House Bill 2462, a bill to reimburse RNFAs, was introduced in March 2004 and still is before the Insurance Committee. A hearing that was scheduled for August was cancelled. AORN hopes the hearing will be rescheduled sometime in 2004 when the General Assembly is back in session.
* States in which AORN retained professional lobbyists in 2004.
(1.) 'Public Act 093-0352,' Illinois General Assembly, http://www.legis.state.il.us/legislation/publicacts /fulltext.asp?name=093-0352 (accessed 26 Oct 2004).
Editor's notes: National 'Time Out' Day is a service mark of AORN, Inc, Denver; Universal Protocol for Wrong Site, Wrong Procedure, Wrong Person Surgery is a trademark of the Joint Commission on Accreditation of Healthcare Organizations, Oakbrook Terrace, Ill.
NOTES
(1.) B Beu, 'Advocacy Day--In Washington and 'on message,'' AORN Journal 80 (November 2004) 939-942.
(2.) B Beu, 'MedPAC informational packet cover letter,' Denver, 13 Oct 2004.
(3.) M Weis, personal communication with the author, Denver, 5 Oct 2004.
BURKE BEU
FEDERAL LEGISLATIVE ANALYST
GOVERNMENT AFFAIRS DEPARTMENT
ARMANDO RIERA
RN, BSN, CNOR
LEGISLATIVE COMMITTEE CHAIR
