Licensing surgical assistants in Texas

OCTOBER 2001, VOL 74, NO 4 HEALTH POLICY ISSUES

Licensing surgical assistants in Texas

T

he 2001 legislative session in Texas was one of great interest and activity for AORN members in that state, as more than six nursing bills were introduced. Two were of particular importance to perioperative nurses in that they pertained to two of A 0 R ” s legislative priorities (ie, third-party reimbursement for RN first assistants [RNFAs] in the states and supervision and regulation of assistive personnel). Gov Rick Perry (R-Tex) signed HB 803, the RNFA reimbursement bill, into law on June 14,2001. The bill was sponsored by Rep Robert June11 (D-San Angelo) and supported by the Texas Nurses Association. Passage of the bill was accomplished with the help of AORN members in Texas. Texas is the third state this year and the ninth state overall to pass FWFA legislation or regulations requiring RNFA reimbursement. The next day, Gov Ferry signed HB 1183, which provides voluntary licensure for surgical assistants. This made Texas the first state to create any type of licensure for surgical assistants. The law is peculiar in that it does not require surgical assistants to be licensed; rather, it makes securing a license voluntary. The Texas Medical Association fought any attempt to make the law mandatory. Under the law, a surgical assistant who loses his or her surgical assistant license can continue to assist but cannot use the surgical assistant title. This law is not

applicable to RNs or physician assistants. Passing or defeating these bills depended partly on the coordinated, dedicated work of all AORN members. Considerable effort by Texas AORN members went into passing HB 803 and raising opposition to HB 1183. Without the help of members of the Texas Council of Operating Room Nurses and AORN, including Denise Jackson, RN, CNOR, CRNFA; Devon Morgan, RN, CNOR, CRNFA; Elaine Thomson-Keith, RN, CNOR; Joanne Oliver, F W ,CNOR; Kate Lindsay, RN, CNOR; Tina Linsalata, RN, CNOR, CRNFA; and many others, RNFAs in Texas would not receive reimbursement for their services and the bill allowing surgical assistant licensure in Texas might contain additional elements that are detrimental to perioperative nursing. AORN recognizes and appreciates the time and effort given by these volunteers.

HOUSE BILL 1 183 AND THE CHANGING LANDSCAPE Texas regulations make it clear that perioperative nurses play a critical role in the OR. The Texas administrative code 5133.41 (u)(2)(K)(v) states, “The operating room shall be supervised by an experienced RN or physician.” In light of this, AORN members in Texas must be cognizant of, and very interested in, any changes to the roles or job status of any member of 545 AORN JOURNAL

the surgical team. AORN members should realize that the effort by surgical assistants and surgical technologists to initiate legislation regarding licensure did not begin with the 2001 legislative session. A bill related to the regulation of surgical technologists and surgical assistants was introduced during the 1997 legislative session, but it never made it out of committee. Texas surgical assistants employed a lobbyist in 1999; however, they were unsuccessful in introducing legislation. The group again hired a lobbyist for 2000 and 2001, as it typically takes more than one legislative session to advance legislation.

Surgical assistant representation. Currently, two national associations claim to represent surgical assistants-the Association of Surgical Technologists (AST) and the National Surgical Assistant Association (NSAA). The AST is attempting to form a separate association, the Association of Surgical First Assistants, to focus solely on the surgical assisting issue. Three national certification examinations are involved in certifying surgical assistants. The Liaison Council on Certification for the Surgical Technologist offers the Certified First Assistant credential, which is recognized by the AST. In addition to promoting standards and education, the NSAA offers the designation of Certified Surgical Assistant. The American Board of Surgical Assistants offers a certification

OCTOBER 2001, VOL 74, NO 4

examination known as “Surgical AssistantsXertified.” Opposing the bill. Given that surgical assistants lack unified standardsand guidelines through one association and that no single certificationexamination for surgical assistants is available, several opponents to HB 1 183 suggested that the bill call for surgical assistant registrationversus licensure. It is hoped that registration would unify surgical assistants in a single association with one set of standards and one certification examination. Another troubling aspect of HB 1183 concerns its applicability. The legislation states that a person is not required to hold a license if he or she is acting under the delegated authority of a licensed physician. This essentially means that HB 1 183 is a voluntary licensure bill. This type of occupational regulation closely resembles an alternative to licensure often referred to as a “title control act.” What is unusual is that title control acts normally involve individuals who practice in areas that are not likely to “result in serious or irreparable harm to the health, safety, or welfare of the public.”’ Opposition to HB 1183 was made difficult for several reasons. First, legislators would not address the underlying issue that surgical assistants lack a single professional association with unified standards, guidelines, and a certification examination. Second, supporters of HB 1 183 downplayed any opposition to the bill as a “turf protection” issue, meaning they believed nurses were trying only to protect their own titles without concern for overall quality patient care. Third, whereas other state legis-

lators have taken a more cautious approach to providing licensure to new health care professions, Texas legislators believed that the licensure of some surgical assistants is better than the licensure of none.

Bill supporters

downplayed any opposition to the bill as a ”turf protection” issue by nurses. ELEMENTS OF nB I 183 As mentioned previously, the issue of a “surgical assistant profession’’ was a main concern that was never addressed by the bill’s proponents, although it was raised continually before and during the legislative process. There are two questions regarding this issue. m What is the representative professional association for surgical assistants? s Is there a single certification examination for surgical assistants? Most professions have a professional association that coordinates and develops the profession’s standards and recommended practices. This association also provides continuing education to meet the needs of its members. Most health care professional associations also recognize a certification examination that is developed and administered by a sepa546 AORN JOURNAL

rate and autonomous organization; this is an issue that has been left to an advisory committee and the Texas Board of Medical Examiners to resolve. Although the two questions comprise the general argument against licensure of surgical assistants, there are other troublesome elements of HB 1183. Definition of supervision. One element is that HB 1183 defines surgical assisting as . . . providing aid under direct supervision in exposure, hemostasis, and other intraoperative technical functions that assist a physician in per$orming a safe operation with optimal resultsfor the patient, including the delegated authority to provide local infiltration or the topical application of a local anesthetic at the operation site. This term is synonymous with ‘9rst assisting. ’?

This raises the issue of supervision in the OR. As introduced, HB 1183 lacked language about supervision of surgical assistants. As licensed professionals in the OR, Texas AORN members wanted assurances that the surgeon would remain in the OR throughout entire procedures. Circulating nurses implored that they did not want the responsibility of overseeing the completion of a procedure performed by someone other than the surgeon. In light of this concern, Texas AORN members sought to add a definition of “personal supervision” of surgical assistants to the bill. This definition would require the surgeon to be physically present until the procedure

OCTOBER 2001, VOL 74, NO 4

was complete. A definition of supervision ultimately was added to the bill; however, it lacked the prescriptive language necessary to ensure the continuous presence of the surgeon: Supervision by a delegating physician who is physically present and who personally directs delegated acts and remains immediately available to personally respond to any emeRency until the patient is released@om the operating room or care and has been tramfirred as determined by the medical board rule, to another physician.’

and confusion with the seemingly contradictory terms physically present and immediately available. This can be interpreted to mean that the surgeon is required to be present physically in the OR at the beginning of the procedure but is not required to be present physically through the completion of the procedure.

Exemptions to requirements for licensure. The eligibility

This definition sows ambiguity

requirements for surgical assistants state that surgical assistants must pass the required examination; hold at least an associate’s degree based on completion of an educational program that is substantially equivalent to the education required for an RN or physician assistant who spe-

cializes in surgical assisting; complete at least 2,000 hours of work as an assistant in surgical procedures during the three years before applying for licensure; and I possess a current certification by a national certifling body approved by the Texas State Board of Medical Examiners. The bill, however, affords several exemptions to surgical assistants who do not meet these requirements. For example, one clause allows surgical assistants to obtain licensure by passing a surgical assistant examination that the Board of Medical Examiners determines is “substantially equivalent” to the board’s certification examination and by applying for licensure before Sept 1,2002.

GOVERNMENT AFFAIRS TOOLBOX

Tumlna vour leaislator into ww lobbyist’ It is a common accurren#. The AORN Government Affairs Department issues an ‘actlon aleK asking members to contact their state or federal representatives. The feeling is urgent. AORN members want to do the right thing and write to the legislators who represent their states. The United States is a representative democracy, which means that you, as a citizen, elect people who can best represent your interests. They work for you, and your vote is their bread and butter. To be an effective advocate for an issue, the first rule is to call, write, or visit with legislators who represent you or your employees or members. Suppose, however, that the issue of importance resides in the hands of a legislator who does not represent you. Should you contact him or her instead of or in addition to your own legislato@for constituents, contacting public officials seldom is the wrong thing to

do-so go ahead and contact the legislator, even though he or she represents another district. Effective advocates, however, will focus their efforts on turning their own representatives into lobbyists for their cause. Consider that the ’constituents’ for the speaker of the House of Representatives ar for the chair of the Senate Health Committee are the other legislators in the House or the other committee members; thus, the legislator‘s fellow representatives or senators wield the most influence over that legislator. So the next time you wnder whether to Contact a legislator who resides over your issue but who may not reside in your district, consider instead asking your own representative to write a letter, schedule a meeting, or make a telephone call to that legislator. Working with your own elected officials in these siiuations--and encouraging them to lobby for your issu4-will be a much more effective use of your time.

NOTE 1. The Advocacy Tip Sheet (news release, Washington, DC: Advanced Consulting, Aug 5,2001).

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OCTOBER 2001, VOL 74, NO 4

Another clause allows surgical assistants who do not meet the educational requirements to obtain licensure by applying before Sept I, 2002, and by completing several required courses or by having been continuously certified and practicing as a surgical assistant since Sept 30, 1995. Changes made. A positive change made to the bill before it passed involved modifications to the surgical assisting advisory board. Bill supporters initially proposed a nine-member Board of Surgical Assistants to advise the Texas State Board of Medical Examiners regarding qualifications and minimum education and training requirements for surgical assistants to practice in Texas. In the final bill, the language no longer called for an advisory board but an informal advisory committee. The number of members was reduced from nine to six, and one member now must be a perioperative RN with at least five years of clinical experience as a perioperative RN. The bill allows the Board of Medical Examiners to 8 establish qualifications for a surgical assistant to practice in Texas; II establish requirements for an

examination that an individual must pass to obtain a license to practice as a surgical assistant; m establish minimum education and training requirements necessary to obtain a license to practice as a surgical assistant; m develop an application form and the information to be requested when an individual wants to become licensed; and m develop an approved program of mandatory continuing education and the manner in which attendance at all approved courses, clinics, forums, lectures, programs, or seminars is monitored and recorded.

LOOKING AHEAD The passage of HB 1 183 should not be viewed in isolation but within the context of legislative happenings throughout the country. Kentucky passed a law in 2000 that requires hospitals to establish protocols for surgical technologists (STs) and a vehicle for reimbursement for first assisting services. This made Kentucky the first state to require reimbursement for STs for first assisting. In 1999, a bill to register STs was passed in Washington. This bill exceeds

NOTES 1. C Schoon, I L Smith, eds, The Licensure and Cer@cation Mission (New York Professional Examination Service, 2000). 2. “An act relating to the regulation of surgical

simple registration, as it provides examples of typical surgical tasks to identify who needs to register, and it identifies activities that STs are prohibited from performing. Similar legislative or regulatory efforts have been attempted in Arizona, Illinois, New York, and Virginia. AORN members can be assured that changes in legislation will continue to be proposed in other states, as well. Market forces, such as managed care and the nursing shortage, have pressured the health care industry to pursue measures to meet the bottom line. These measures, however, can be dangerous, short-term solutions. Legislators will continue to be receptive to providing solutions to a health care industry that they perceive is in crisis. AORN members should recognize that opposition to the licensure of unlicensed assistive personnel is not merely a “turf battle.” Rather, nurses should be persistent, present a unified voice, and convey a simple message that addresses quality patient care and safety in the perioperative arena. FREDERICK P. FRANK0 STATE LEGISLATIVE COORDINATOR

assistants granting rulemakmg authority; providing an administrative penalty,” Texas Legislature Online, http://tlo2.tlc.state.tx.us (accessed 28 Aug 200 1). 3. Ibid.

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