Regulation of Health Care Education

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Proper and Improper Regulation of

Health Care Education

Public Protection or Special Interests?

Michael White, M.S., J.D.

Director of Legaland

Regulatory Affairs

The Accrediting Bureau of HealthEducation Schools

Regulation of Health Care Education

• Surgical technologists assist in surgical operations under the supervision of surgeons, registered nurses, or other surgical personnel.

• Effective July 1, 2006, Tennessee became the first state to regulate who could be hired to work as a surgical technologist.

• The law provided that in order to work in the state a surgical technologist must pass an exam created and administered by a private group ( who required specific education to sit) or graduate from an educational program approved by another private group.

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• The law provided that in order to work in the state a surgical technologist must pass an exam created and administered by a private group or graduate from an educational program accredited by another private group.

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The law did not create any state agency to oversee the practice of surgical technology.

The private testing company, headquartered in another state, had complete control of its exam, including the exam’s content and complete decisions on what constituted “passing.” The private testing company decided it would only allow graduates from programs it approved to sit. The private company that evaluated educational programs was headquartered in the same building in the other state as the testing company and had complete control over its decisions to recognize an educational program or not.

Both the testing company and the accrediting organization were closely associated with a trade association of those already working in the field. The law “grandfathered” in those already working in the field.




• The law provided that in order to work in the state a surgical technologist must pass an exam created and administered by a private group or graduate from an educational program accredited by another private group.

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The law did not create any state agency to oversee the practice of surgical technology.

The private testing company, headquartered in another state, had complete control of its exam, including who could sit for the exam – including specifics of their education, and had complete control over the exam’s content and all decisions on what constituted “passing.”

The private accrediting organization, headquartered in the same building in the other state as the testing company had complete control over its decisions to recognize an educational program or not.

Both the testing company and the accrediting organization were closely associated with a trade association of those already working in the field. The law “grandfathered” in those already working in the field.

Proper or Improper Regulation ?

Government Power to Regulate

In the United States, individual freedom is a core, basic value.

However, states can limit individual freedom by the exercise of the “police power.”

The “police power” is the inherent right, and obligation, of state governments to make laws and regulations necessary for the benefit of the public.

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“Benefit of the public” a key concept.

If a state inhibits the freedom of an individual in some way that is not for the benefit of the larger community, then the state’s action violates the Constitutional guarantees of life liberty and property.

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Example:

Taking an individual’s land in order to construct a new highway.

v.

Taking the same land because it adjoins a private gun club where the governor shoots clay pigeons and the club wants to expand to add more shooting stations.

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Example:

Taking an owner’s land as part of constructing an new highway.

v.

Taking the same land because it adjoins a private gun club where the governor shoots clay pigeons and the club wants to expand to add more shooting stations.

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What if the state owns vacant land

that would serve the new highway

as well in every respect?



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In order to be Constitutional, a state action that limits individual freedom must:

1.Promote a public interest that outweighs the loss of individual freedom, and

2.Must be narrowly designed to cause the least loss of personal freedom possible.

Regulating who may work

• Laws that restrict who may work interfere with personal freedoms– Right of the employer to hire– Right of the worker sell

services

• To be constitutional, restrictions on who can work– Must serve a public need– Must be no more restrictive

than necessary to meet that public need

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• Factors in Assessing Public Need– Inability of the public to

assess the skill, quality or experience of the worker in advance

– The work can have irreversible consequences, or consequences that cannot be compensated with damages

– The work has vital or drastic impact on those it affects

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• Public need ?– Inability of consumer to assess the skill,

quality or experience of the worker in advance– The work can have irreversible

consequences, or consequences that cannot be compensated with damages


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When the work is of a character where those affected by it are at risk of grave harm and are not able to exercise reasonable, individual caution to protect against that harm, “buyer beware” gives way to government protection.


• Public need ?– Inability of consumer to assess the skill, quality or

experience of the worker in advance– The work can have irreversible consequences, or

consequences that cannot be compensated with damages


RESTATED: Where the work is of limited impact, can be redone or compensation can make the recipient whole if done poorly, or the consumer is able to assess the ability, skill or experience of the worker before the work is done, then there is no overwhelming public purpose in restricting who can do the work.

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Regulating who may work in Health Care

• Public need ?– Life and

health at stake

– Irreversible consequences

– Inability of consumer to assess in advance

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Arizona Administrative

CodeTitle 4: Professions

and Occupations

1. Accountants2. Therapists3. Chiropractic4. Acupuncture5. Dentists/ Hygienists6. Funeral Directors7. Massage Therapy8. Physicians9. Pharmacists10.Physical Therapy11.Pest Control12.Private

Postsecondary Ed.13.Nurses14.Occupational

Therapy15.Respiratory Therapy16.Radiologic

Technology

Responsibility

Decision

Control


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Contrast:

Historically, a host of health care workers who ASSIST and work under the supervision of regulated health care providers were unregulated:

E.g.; Medical Assistant, Dental Assistant, Surgical Technologist, Pharmacy Assistant, Veterinary Assistant, Sonographer, Phlebotomist, Ophthalmic Technician, Cardiopulmonary Technologist, Radiographer, Respiratory Therapist, Electrocardiograph Technician.


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Contrast:


E.g.; Medical Assistants, Dental Assistants, Surgical Technologists, Pharmacy Assistants, Veterinary Assistants, Sonographer, Phlebotomist, Ophthalmic Technician, Cardiopulmonary Technologist, Radiographer, Respiratory Therapist, Electrocardiograph Technician.

Until recently in the this country, the physicians and other licensed professionals who are legally responsible for and who supervise health care assistants were free to hire who they wanted.


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Contrast:


E.g.; Medical Assistants, Dental Assistants, Surgical Technologists, Pharmacy Assistants, Veterinary Assistants, Sonographer, Phlebotomist, Ophthalmic Technician, Cardiopulmonary Technologist, Radiographer, Respiratory Therapist, Electrocardiograph Technician.

Today this model is being modified by a growing number state laws and regulations that set criteria for who is eligible to be hired to work in these health care positions that report to and work under the supervision of regulated health care professionals.


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What happens when the state limits who can be hired in health care assisting roles?

1.The supply goes down.2.Demand for those who do qualify goes up.3.The cost of health care increases.

- Salaries/benefits to those who qualify

4.Profits for:- Schools, text publishers,

credentialers,

5. Public is safer?


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What happens when the state limits who can be hired in health care assisting roles?

1.The supply goes down.2.Demand for those who qualify goes up.3.The cost of health care increases.

- Salaries/benefits to those who qualify

4.Profits for:- Schools, text publishers, credentialers

5. Public is safer?

Which of these is a Public

Interest the supports proper

state regulation ?


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Principles of Proper Regulation for Public Protection:

1. Any restriction on who may be hired must be supported by evidence that the public is at greater risk without the restriction.

2. The restriction must be no broader than necessary to address the specific risk.

3. Regulation must be carried out objectively by representatives of the public who have no personal stake.


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1. Any restriction on who may be hired must be supported by evidence that the public is at greater risk without the restriction.

What is actually happening?

FACT: Bills are being promoted that limit who can work in traditionally unregulated fields with no evidence that anyone has been harmed under the present system.

The sponsors are typically trade associations of those already working in

the field.


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2. The restriction must be no broader than necessary to address the specific risk.


FACT: Since no specific risk or harm has been identified the restrictions have no reference to any real problem. How do we know what is needed?

Typically they: A) prescribe specific education; and/or

B) prescribe passing a specific exam


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3. Regulation must be carried out objectively by representatives of the public who have no personal stake. .


FACT: Bills provide that to work in the field one must graduate from a program accredited by a private organization closely tied to the trade association and/or pass an examination created and sold by a private company closely tied to the trade association

With NO state authority or public representation at all !


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Summary:

1.Trade associations and their associated credentialing and accrediting arms are promoting new limits on who can work in health care positions that were traditionally under the supervision of other licensed health care professionals.

2.Trade associations sponsoring these laws often assure their constituents that these laws will increase their salaries (grandfathering), increasing health care costs to the rest of us.

3.The sponsors have not demonstrated danger or risk to patients under the present, less regulated approach.

4.The laws being promoted give complete power to regulate who may work to those already in the field.

Dreadful Regulation of


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Summary:

1.Trade associations and their associated credentialing and accrediting arms are promoting new limits on who can work in health care fields that were traditionally under the supervision of licensed health care professionals.

2.Trade associations sponsoring these laws often assure their constituents that these laws will increase their salaries, thus increasing health care costs to the rest of us.

3.The sponsors have not demonstrated danger or risk to patients under the present, less regulated approach.

4.The laws being promoted give complete power to regulate who may work to those already in the field.

Dreadful Regulation of

5. The education needed to work in these fields is being dictated by the trade associations and their closely related credentialing and accrediting organizations :

a. By limiting access to required exams to those with specific education, and/or

b. By requiring education approved by a single, specific accreditor that is closely related to a trade association.


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1. There must be evidence of a specific risk to public.

2. Regulation must be carefully drawn to address the specific risk.

3. Regulation must be implemented by an independent state authority charged with carrying out the public interest.

Proper

Regulatio

n of


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Independent State Authority

1. Charged with carrying out the public interest.

2. Determines the regulations that are necessary to achieve specific, demonstrated public interests, e.g.:- Age- Education, continuing education- Personal attributes- Credentials

3. Composed to assure public need is paramount- Public members- Professionals and related professionals-Educators

Proper

Regulation of


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2. Determines the regulations that are necessary to achieve specific, demonstrated public interests.- Age- Education, continuing education- Personal attributes- Credentials


Proper Regulation of

• Any legislation that does not establish this state authority and instead simply declares that eligibility to work is based on passing an exam controlled by a private credentialing body is improper.

• Any legislation that does not establish this state authority and instead simply declares that eligibility to work is based on education from a program accredited by a specific, private accrediting agency is improper.


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2. Determines the regulations that are necessary to achieve specific, demonstrated public interests.- Age- Education, continuing education- Personal attributes- Credentials


Proper Regulation of

• Any legislation that does not establish this state authority and instead simply declares that eligibility to work is based on passing an exam controlled by a private credentialing body is improper.

• Any legislation that does not establish this state authority and instead simply declares that eligibility to work is based on education from a program accredited by a specific, private accrediting agency is improper.

NOTE:

A public authority, properly composed and acting in public interest could adopt these rules.

BUT:

The private groups involved would answer to the public authority if they were to retain their roles.


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Conclusion:

1. Health care affects us all. We all have a stake in how health care workers are trained and supervised.

2. Limiting who can provide services must be carried out by objective, public authorities working for us all and not by narrow special interests.

Documents

Regulation of Health Care Education