MONTPELIER — Saying it lacked authority to approve what would be a policy change, the Legislative Committee on Administrative Rules again rejected the Shumlin administration’s proposal Thursday to allow some nurses and physician assistants to order involuntary procedures on patients in emergencies.
But the panel will ask the House and Senate committees with jurisdiction over health and human services to take action early in the legislative session to allow what the administration is seeking.
The rules committee first rejected the proposal by the Department of Mental Health last month on a 6-1 vote; its vote Thursday certifying the position was 6-2. The proposal would grant authority to advanced practice registered nurses and physician assistants to seclude, restrain or medicate a patient against that person’s will.
The department is seeking to codify the practice for those practitioners, which is already in place at private hospitals under standards set forth by the federal Centers for Medicare and Medicaid Services, or CMS. The issue has become clouded, however, by the recent move to decentralize mental-health care in the state.
The Shumlin administration created a regional mental-health treatment system after Tropical Storm Irene damaged the Vermont State Hospital in Waterbury in 2011. Act 79, which created the regional system, also required that patients receive the same rights and protections at private hospitals that they would have received at the state hospital.
A class action lawsuit, Doe vs. Miller, filed by Vermont Legal Aid in 1984 resulted in a settlement that set forth standards at the state hospital that are more stringent than the regulations imposed on hospitals by CMS.
Policies at the defunct state hospital required a physician to meet a patient before emergency involuntary procedures could be used, including medication.
Hospitals following CMS regulations allow advanced-practice registered nurses and physician assistants to call a doctor once a patient is restrained and ask for a prescription over the phone. The prescription can then be forcibly administered without the patient first being evaluated in person by a physician.
Advocates opposed to the department’s rule argue that allowing nonphysicians to implement emergency involuntary procedures without a patient being seen by a physician deviates from rules that were in place at the state hospital.
Human Services Secretary Doug Racine wrote to the committee Monday outlining reasons the rule meets the state hospital requirements and asking the committee to drop its objection.
Racine and Mental Health Commissioner Paul Dupre maintain the state and federal governments have expanded the authority of physician assistants and advanced-practice nurses to include authorities previously granted only to physicians. They argue the department is maintaining the same rights and protections for patients, but the range of personnel who can order emergency involuntary procedures has expanded under existing state statute.
Dupre reiterated the letter’s arguments to the committee Thursday.
“We don’t believe that’s following all the rules that were at the state hospital. We believe that it means putting together rules that offer the same types of rights and protections that we had,” he said.
Additionally, Dupre said hospitals will not have enough physicians on staff to oversee cases where emergency involuntary procedures are required. Hospitals may be unwilling to provide mental-health services as a result, he said.
“You won’t have enough psychiatrists to provide the service. So, the impact is that some of the hospitals will probably say, ‘We’re not going to do this. We’re not going to jeopardize our whole CMS standing,’” Dupre said. “I think people will get hurt because there won’t be the capacity to provide the services.”
Lawmakers were not swayed, though.
The existing precedent of expanding authority to nonphysician practitioners does not apply because using that authority for emergency involuntary procedures is “a policy matter and completely different because the patient in this case does not have the opportunity to say, ‘Thank you very much for your recommendation, I choose not to accept it,’” said committee Chairman Mark MacDonald, an Orange County Democratic senator.
“That’s not our job in this committee to join you in making that leap. That’s the committee of jurisdiction’s problem,” he said.
Other committee members expressed similar thoughts.
“I think there is a real problem with this committee being able to approve what you’re asking for because I think the statutory language that we were given to look at says the same protections as someone at the state hospital,” said Rep. Richard Marek, D-Newfane, who noted that the Doe vs. Miller settlement required a licensed physician. “I think your policy arguments make perfect sense, but I don’t think this is the forum that can deal with them.”
Republican Sen. Peg Flory of Rutland County sought support among the committee members to postpone any further action until the Legislature had a chance to clarify the statute early next year. The committee opted against that, however, despite Dupre’s consent.
The department could still implement the rule without the committee’s approval. That could make the department more susceptible to legal challenges, however. Dupre said after Thursday’s hearing that all options remain on the table and no decision has been made on how the department will proceed.
The rules committee voted unanimously Thursday to ask the House Committee on Human Services and the Senate Committee on Health and Welfare to take up the matter when the Legislature reconvenes in early January and include in the statute the expanded authority for nonphysicians the department is seeking.
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