Dentists Widen Scope, Nurses Withdraw Rules
Law Feature — September 2014
Tex Med. 2014;110(9):27-30.
By Kara Nuzback
Thanks to opposition from the Texas Medical Association and other organizations, the Texas Board of Nursing (TBON) has withdrawn proposed rules that would have allowed advanced practice registered nurses (APRNs) to make medical diagnoses. TMA works continually to promote patient safety and physicians' role as leaders in the health care delivery team.
According to TBON's proposed rules, published May 30 in the Texas Register, APRNs, by definition, could be held accountable for "the assessment, diagnosis, and management of patient problems."
The proposed rules divided APRNs into four categories — certified clinical nurse specialist (CNS), certified nurse-midwife, certified nurse practitioner (CNP), and certified registered nurse anesthetist — and purport diagnosis privileges in the CNS and CNP categories.
"The Clinical Nurse Specialist is educated in diagnosis and treatment of health/illness states, disease management, health promotion, and prevention of illness and risk behaviors within a population focus area in compliance with state law," the proposal reads.
The proposal also said a CNP would provide diagnosis and management of chronic medical conditions.
TMA President Austin King, MD, and leaders from nine other Texas medical societies sent a letter to TBON opposing the rules.
"Throughout the proposed rules, APRNs are given the authority to 'diagnose' medical conditions, yet the Texas Occupations Code … expressly defines 'professional nursing' as not including the acts of medical diagnosis," the letter states. "To be valid and enforceable, the rules must conform to statutory requirements and restrictions in Texas laws."
Dr. King stressed the proposed TBON rules "should recognize that medical acts are delegated by licensed physicians, and the same medical standards of practice should apply to APRNs when performing delegated medical acts as apply to physicians."
TBON Assistant General Counsel Jena Abel says TBON withdrew the proposed rules at its July 18 meeting. She says the opposition to the proposal surprised the board.
She says the intent of the rule change was to update terminology and align the rules with the National Council of State Boards of Nursing so that APRNs could more easily cross state lines and continue to practice without jumping through too many administrative hoops.
Ms. Abel says the TBON staff plans to meet with some of the groups that oppose the new rules, including TMA, and come up with a proposal that both nurses and physicians are happy with.
"We're not trying to expand scope," Ms. Abel said. "Hopefully, at the end, we'll be able to bring a better proposal back to the board where everyone's on the same page."
She says the staff plans to come up with a new proposal in time for TBON's Oct. 23 meeting. The proposal would then be subject to a new public comment period.
Rep. John Zerwas, MD (R-Richmond), also penned a letter to TBON opposing its proposal to allow APRNs to diagnose patients.
"Broadly speaking, any expansion of scope of practice is deserving of a legislative conversation and is not something that should be conducted through the board's rulemaking process," he wrote.
Representative Zerwas also says the proposed rules would have expanded nurse anesthetists' scope beyond their education and training.
Thomas Oliverson, MD, chair of the Office-based Anesthesia Committee for the Texas Society of Anesthesiologists (TSA), testified in person against the rule change at a public hearing before TBON in July. Dr. Oliverson says TBON is not likely paving the way to give APRNs the ability to practice medicine independently of physicians, but he contends the board is jumping on a nationwide bandwagon.
"It sounds like this is part of a national movement … to create some universal standards for APRNs," he said, rather than having nurses continue to follow the same standards as physicians if they are engaged in medical acts.
The problem with having separate standards for nurses and physicians is it creates a gray area that could affect patient safety, Dr. Oliverson says, adding that separate standards would also conflict with Medicare requirements. A condition of participation in Medicare is a uniform standard of care, he says.
"You cannot have two different standards of care for Medicare beneficiaries in the same facility," he said.
Dr. Oliverson says the Texas Legislature would not likely allow nurses to practice independently of physicians, so nursing groups are instead taking a backdoor approach to get more privileges, little by little.
"It's death by a thousand cuts," he said. "Independent practice is clearly the goal."
Dr. Oliverson says some states have given nurses more autonomy.
"They would say Texas is behind the times. I would say Texas puts patients first," he said.
Fort Worth pediatrician and TMA Trustee Gary Floyd, MD, testified before the legislature in favor of Senate Bill 406, a scope-of-practice compromise the legislature approved last year after years of disagreement between physicians and APRNs. The bill expanded prescribing privileges for APRNs and increased the number of APRNs to whom a physician could delegate. It also gave physicians more leeway in managing nonphysician practitioners (NPPs) by eradicating a restriction that forced physicians to be on site 10 percent of the time.
Dr. Floyd says a nurse's job is to assess a patient's status and provide care and comfort.
"I do not think it is a good idea for them to change the rule language," he said. "Their nurse training does not teach them what medicine considers medical diagnosis."
Dr. Floyd adds, "Medical diagnosis is the practice of medicine. They need to go to medical school if that's what they want to do."
Safety a Priority
TBON announced its proposal on the heels of another scope-of-practice debate involving dentists. In June, a new State Board of Dental Examiners rule took effect, allowing dentists to screen for and treat sleep disorders. The board adopted the rule even though TMA and the Texas Neurological Society (TNS) testified against the change, pointing out its potential to harm patients with severe obstructive sleep apnea (OSA).
OSA is a medical condition causing repeated narrowing of the throat during sleep. It either partially or completely blocks the airway. Continuous positive airway pressure (CPAP) is an OSA treatment that uses a machine to release mild air pressure into a patient's mouth or nose using a mask.
The dental board's rule allows dentists to treat patients for OSA and benign snoring using oral devices that keep the tongue and soft tissues in the back of the throat open, allowing the airway to remain unobstructed. The rule also allows dentists to screen for OSA and benign snoring, including the ability to conduct sleep studies.
Sarah Carnes-Lemp, general counsel for the dental board, says the board wanted to address the subject because dentists were treating OSA without a physician's prescription. She says the dental board revised the proposed rule several times before it adopted the rule.
Under the new rule, she said, "dentists cannot diagnose obstructive sleep apnea, but they can treat it on a medical physician's prescription."
The board doesn't allow dentists to treat OSA without a prescription from a physician, Ms. Carnes-Lemp says.
TMA opposed the rule on the basis that diagnosing and treating sleep disorders is the practice of medicine and exceeds the scope of dentistry. TMA Past President Stephen Brotherton, MD, and TNS President Kim Monday, MD, submitted a letter to the dental board in April opposing the new rule.
Screening for a medical condition, such as sleep apnea, is outside the scope of dentistry and should be performed only by a licensed physician, the letter states.
Drs. Brotherton and Monday also note TMA and TNS support the Texas Medical Board’s (TMB's) position statement that reads, "… if a dentist were to diagnose and treat sleep apnea independently, this would be a violation of the Texas Medical Practice Act. This would include a dentist ordering a sleep study."
According to dental board meeting minutes, W. Keith Thornton, DDS, a Dallas dentist who invented the Thornton Adjustable Positioner (TAP), a mouthpiece designed to replace CPAP, submitted written comments in favor of the rule, as did the Texas Academy of General Dentistry and Plano dentist Bill Gerlach, DDS.
"I think it's a travesty," said Houston neurologist Bob Fayle, MD, a member of TMA and TNS who testified before the dental board against the rule change.
Dr. Fayle says CPAP is the most effective form of treatment for OSA. Mouthpieces like TAP can help mild cases of sleep apnea but are not enough to treat severe cases of OSA, he says.
"Sleep apnea can be potentially fatal," he said. "I'm not tied to any one treatment, but 95 percent of the time, CPAP is the most effective treatment."
Dr. Fayle says it is common for untreated OSA patients to have cardiac arrhythmias and heart block.
"Some of those can be lethal," he said. "All that goes away when you put them on CPAP."
Dr. Fayle says a small, vocal group of dentists pushed for the rule. He worries dentists will use mouthpieces to treat severe cases of sleep apnea, "which basically means those cases are not being treated," he said.
"We all feel that sleep apnea is a medical illness. For the dentists to be doing this is exceeding their scope of practice. It's going to lead to a big fight, I think, between the medical board and the dental board," he said. "I'm afraid all that is going to get very contentious."
That contention could ruin the collegial relationship between many physicians and dentists, he says, negatively affecting patient care.
Attempts to expand NPP scope of practice have caused TMA to take up arms in the past and defend certain procedures that should be performed only by trained physicians, such as TMA's suit in 2006 to invalidate the Texas Board of Chiropractic Examiners' (TBCE's) rule permitting chiropractors to diagnose and test for neuromuscular diseases.
Dr. Fayle worries the dental board's decision also could lead to a lawsuit.
Dr. Monday says she fears the new rule will mean patients with moderate to severe OSA will be underdiagnosed, leading to complications, including an arrhythmia or cerebrovascular accident while wearing an oral device.
Dr. Monday says she has great respect for dentists, but TNS doesn't plan to back down.
"The TNS plans on pursuing this violation of the Medical Practice Act as we pursued the chiropractors who wanted to do needle electromyography [EMG] — in the judicial system," she said.
In 2012, TMA, TNS, and TMB took TBCE to court to invalidate the board's adoption of rules that would have allowed chiropractors to perform EMG. An appellate court ruled in favor of TMA, saying TBCE exceeded its authority in adopting the rules. Visit the TMA website for more information on TMA's lawsuit against TBCE.
Kara Nuzback can be reached by telephone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
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