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Advancing Public Protection
Advancing Public Protection Appellate Ruling in Favor of Louisiana LPN Board
New Federal Regulations Target Ineffective Career College Programs
On December 1, 2011, the United States Court of Appeals for the Fifth Circuit affirmed a Louisiana District Court ruling in favor of the Louisiana State Board of Practical Nurse Examiners: Van Staden v. St. Martin, 664 F.3d 56 (5th Cir. 2011). The suit was originally filed against the board by Esthee Van Staden, a licensed practical nurse (LPN) applicant who challenged the denial of her license application. At the time of her LPN license application, Van Staden was a citizen of the Republic of South Africa, but she had applied for permanent resident status in the United States. However, her application had not been approved and a visa number had not yet been issued to her. She claimed that the denial of license by the board based solely upon her immigration status was unconstitutional under the Equal Protection Clause. Van Staden was a nonimmigrant alien. As the court explained, “An alien falling into one of fifteen exclusionary categories is a nonimmigrant alien, a class generally delimited by a lack of intention to abandon his foreign country residence and entry into the United States for specific and temporary purposes.” Although Van Staden had applied for immigrant status, until finalized, her nonimmigrant status continued. Immigrants and nonimmigrants are not guaranteed the same constitutional status/scrutiny. Indeed, the appellate court determined that nonimmigrants, including applicants for permanent residence, are not entitled to the same judicial scrutiny standards under the Constitution as permanent legal residents/ immigrants. As a nonimmigrant, Van Staden’s licensure denial was subject only to a rational basis review, as opposed to strict scrutiny. “Under traditional rational basis analysis, a state law classification that neither burdens a fundamental right nor targets a suspect class will be upheld so long as it bears a rational relation to some legitimate end.” The court found that “the Board’s ‘ability to monitor, regulate, and, when necessary, discipline and sanction [LPNs] requires that it be able to locate [LPNs] under its jurisdiction. The State’s determination that the easily terminable status of nonimmigrant aliens would impair these interests and their enforcement is not irrational.’ ” Consequently, the Louisiana statute was not unconstitutional and the board did not violate the Constitution by denying Van Staden’s license application. http://caselaw.findlaw.com/us-5th-circuit/1586978.html
The Obama Administration recently released final regulations requiring career college programs to better prepare students for “gainful employment” or risk losing access to federal student aid. While many career college programs are helping to prepare America’s workforce for the jobs of the future, far too many students at these schools are taking on unsustainable debt in exchange for degrees and certificates that fail to help them get the jobs they need or were promised. These regulations are designed to ramp up over the next 4 years, giving colleges time to reform while protecting students and their families from exploitative programs. “These new regulations will help ensure that students at these schools are getting what they pay for: solid preparation for a good job,” Secretary of Education Arne Duncan said. “We’re giving career colleges every opportunity to reform themselves but we’re not letting them off the hook, because too many vulnerable students are being hurt,” Duncan continued. To qualify for federal aid, the law requires that most forprofit programs and certificate programs at nonprofit and public institutions prepare students for gainful employment in a recognized occupation. Under the regulations introduced, a program would be considered to lead to gainful employment if it meets at least one of the following three criteria: At least 35% of former students are repaying their loans (defined as reducing the loan balance by at least $1); the estimated annual loan payment of a typical graduate does not exceed 30% of his or her discretionary income; or the estimated annual loan payment of a typical graduate does not exceed 12% of his or her total earnings. While the regulations apply to occupational training programs at all types of institutions, for-profit programs are most likely to leave their students with unaffordable debts and poor employment prospects. These new regulations, which will go into effect on July 1, 2012, provide students and consumers with the information they need to make good educational choices and give failing programs ample opportunity to make needed improvements. Institutions will now be required to disclose their total program costs, loan repayment rates, graduates’ debt-to-earnings ratio and other critical consumer information to help students better choose the gainful employment program that’s right for them. www.ed.gov/news/press-releases/gainful-employment-regulations
Volume 3/Issue 1 April 2012
www.journalofnursingregulation.com
57
FSMB Update Policy on Physician Impairment The Federation of State Medical Boards of the United States, Inc. (FSMB) House of Delegates recently adopted an updated Policy on Physician Impairment that provides guidance to state medical and osteopathic boards for including physician health programs (PHPs) as part of their efforts to protect the public. Based on current best practices, the policy offers a vision for boards and PHPs to effectively assist impaired licensees and licensees with potentially impairing illnesses. The policy offers a discussion of the terms “functional impairment” and “potentially impairing illness,” defines other key terms, and provides a model for implementing a successful physician health program. It also provides criteria for determining when physicians should be referred for professional evaluation/assessment and guidelines to help in the selection of providers or facilities to assist in the evaluation/assessment of physicians with addictive and/ or psychiatric illness. The policy offers guidance and criteria for treatment, discharge planning, continuing care, and relapse management and monitoring, and concludes with sections on physical impairment in physicians and the application of the PHP model for allied health practitioners. www.fsmb.org/pub_jmr.html
Home Health Planning and Improvement Act Introduced in Congress The Home Health Planning and Improvement Act (S. 227/H.R. 2267), introduced by Senators Susan Collins (R-ME) and Kent Conrad (D-ND) in the Senate and Representatives Allyson Schwartz (D-PA) and Greg Walden (R-OR) in the House of Representatives, would allow advanced practice registered nurses (APRNs), nurse practitioners (NPs), clinical nurse specialists, certified nurse midwives, and physician assistants to order home health services under Medicare in accordance with state law. Medicare has recognized the autonomous practice of APRNs for nearly 2 decades, and these health care professionals now coordinate the majority of skilled care to home health patients. A quirk in Medicare law has kept APRNs from signing home health plans of care and certifying Medicare patients for the home health benefit. In areas where access to physicians is limited, this prohibition has led to delays in health care delivery, which inconvenience patients and their families. Additionally, delays can lead to increased cost to the Medicare system when patients are unnecessarily left in more expensive institutional settings. APRNs are playing an increasing role in American health care delivery, practicing independent of physicians in most states. The ability of APRNs to provide high quality, cost-effective care has been widely recognized by patients and the health care community and is supported by significant peer-reviewed research and critical analysis. APRNS are willing to provide services in areas where access to physicians is limited, including underserved 58
Journal of Nursing Regulation
urban and remote rural areas. At least 66% of NPs practice in primary care settings and 20% practice in remote rural or frontier settings. The Home Health Care Planning Improvement Act of 2011 aims to ensure that Medicare patients receive care in a timely and cost-efficient manner. www.rnaction.org/site/PageServer?pagename=nstat_take_action_ home_health&ct=1
New Federal Regulations Target Ineffective Career College Programs
On December 1, 2011, the United States Court of Appeals for the Fifth Circuit affirmed a Louisiana District Court ruling in favor of the Louisiana State Board of Practical Nurse Examiners: Van Staden v. St. Martin, 664 F.3d 56 (5th Cir. 2011). The suit was originally filed against the board by Esthee Van Staden, a licensed practical nurse (LPN) applicant who challenged the denial of her license application. At the time of her LPN license application, Van Staden was a citizen of the Republic of South Africa, but she had applied for permanent resident status in the United States. However, her application had not been approved and a visa number had not yet been issued to her. She claimed that the denial of license by the board based solely upon her immigration status was unconstitutional under the Equal Protection Clause. Van Staden was a nonimmigrant alien. As the court explained, “An alien falling into one of fifteen exclusionary categories is a nonimmigrant alien, a class generally delimited by a lack of intention to abandon his foreign country residence and entry into the United States for specific and temporary purposes.” Although Van Staden had applied for immigrant status, until finalized, her nonimmigrant status continued. Immigrants and nonimmigrants are not guaranteed the same constitutional status/scrutiny. Indeed, the appellate court determined that nonimmigrants, including applicants for permanent residence, are not entitled to the same judicial scrutiny standards under the Constitution as permanent legal residents/ immigrants. As a nonimmigrant, Van Staden’s licensure denial was subject only to a rational basis review, as opposed to strict scrutiny. “Under traditional rational basis analysis, a state law classification that neither burdens a fundamental right nor targets a suspect class will be upheld so long as it bears a rational relation to some legitimate end.” The court found that “the Board’s ‘ability to monitor, regulate, and, when necessary, discipline and sanction [LPNs] requires that it be able to locate [LPNs] under its jurisdiction. The State’s determination that the easily terminable status of nonimmigrant aliens would impair these interests and their enforcement is not irrational.’ ” Consequently, the Louisiana statute was not unconstitutional and the board did not violate the Constitution by denying Van Staden’s license application. http://caselaw.findlaw.com/us-5th-circuit/1586978.html
The Obama Administration recently released final regulations requiring career college programs to better prepare students for “gainful employment” or risk losing access to federal student aid. While many career college programs are helping to prepare America’s workforce for the jobs of the future, far too many students at these schools are taking on unsustainable debt in exchange for degrees and certificates that fail to help them get the jobs they need or were promised. These regulations are designed to ramp up over the next 4 years, giving colleges time to reform while protecting students and their families from exploitative programs. “These new regulations will help ensure that students at these schools are getting what they pay for: solid preparation for a good job,” Secretary of Education Arne Duncan said. “We’re giving career colleges every opportunity to reform themselves but we’re not letting them off the hook, because too many vulnerable students are being hurt,” Duncan continued. To qualify for federal aid, the law requires that most forprofit programs and certificate programs at nonprofit and public institutions prepare students for gainful employment in a recognized occupation. Under the regulations introduced, a program would be considered to lead to gainful employment if it meets at least one of the following three criteria: At least 35% of former students are repaying their loans (defined as reducing the loan balance by at least $1); the estimated annual loan payment of a typical graduate does not exceed 30% of his or her discretionary income; or the estimated annual loan payment of a typical graduate does not exceed 12% of his or her total earnings. While the regulations apply to occupational training programs at all types of institutions, for-profit programs are most likely to leave their students with unaffordable debts and poor employment prospects. These new regulations, which will go into effect on July 1, 2012, provide students and consumers with the information they need to make good educational choices and give failing programs ample opportunity to make needed improvements. Institutions will now be required to disclose their total program costs, loan repayment rates, graduates’ debt-to-earnings ratio and other critical consumer information to help students better choose the gainful employment program that’s right for them. www.ed.gov/news/press-releases/gainful-employment-regulations
Volume 3/Issue 1 April 2012
www.journalofnursingregulation.com
57
FSMB Update Policy on Physician Impairment The Federation of State Medical Boards of the United States, Inc. (FSMB) House of Delegates recently adopted an updated Policy on Physician Impairment that provides guidance to state medical and osteopathic boards for including physician health programs (PHPs) as part of their efforts to protect the public. Based on current best practices, the policy offers a vision for boards and PHPs to effectively assist impaired licensees and licensees with potentially impairing illnesses. The policy offers a discussion of the terms “functional impairment” and “potentially impairing illness,” defines other key terms, and provides a model for implementing a successful physician health program. It also provides criteria for determining when physicians should be referred for professional evaluation/assessment and guidelines to help in the selection of providers or facilities to assist in the evaluation/assessment of physicians with addictive and/ or psychiatric illness. The policy offers guidance and criteria for treatment, discharge planning, continuing care, and relapse management and monitoring, and concludes with sections on physical impairment in physicians and the application of the PHP model for allied health practitioners. www.fsmb.org/pub_jmr.html
Home Health Planning and Improvement Act Introduced in Congress The Home Health Planning and Improvement Act (S. 227/H.R. 2267), introduced by Senators Susan Collins (R-ME) and Kent Conrad (D-ND) in the Senate and Representatives Allyson Schwartz (D-PA) and Greg Walden (R-OR) in the House of Representatives, would allow advanced practice registered nurses (APRNs), nurse practitioners (NPs), clinical nurse specialists, certified nurse midwives, and physician assistants to order home health services under Medicare in accordance with state law. Medicare has recognized the autonomous practice of APRNs for nearly 2 decades, and these health care professionals now coordinate the majority of skilled care to home health patients. A quirk in Medicare law has kept APRNs from signing home health plans of care and certifying Medicare patients for the home health benefit. In areas where access to physicians is limited, this prohibition has led to delays in health care delivery, which inconvenience patients and their families. Additionally, delays can lead to increased cost to the Medicare system when patients are unnecessarily left in more expensive institutional settings. APRNs are playing an increasing role in American health care delivery, practicing independent of physicians in most states. The ability of APRNs to provide high quality, cost-effective care has been widely recognized by patients and the health care community and is supported by significant peer-reviewed research and critical analysis. APRNS are willing to provide services in areas where access to physicians is limited, including underserved 58
Journal of Nursing Regulation
urban and remote rural areas. At least 66% of NPs practice in primary care settings and 20% practice in remote rural or frontier settings. The Home Health Care Planning Improvement Act of 2011 aims to ensure that Medicare patients receive care in a timely and cost-efficient manner. www.rnaction.org/site/PageServer?pagename=nstat_take_action_ home_health&ct=1