Legislature(2003 - 2004)
04/23/2003 01:36 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 142
"An Act relating to provider responsibility for ocular
postoperative care; and providing for an effective
date."
REPRESENTATIVE CHERYLL HEINZE, SPONSOR provided information
about the bill. She explained that the legislation focused
on patient care, and noted that a number of her constituents
were of an age when their eyesight was deteriorating and
they were in need of surgical procedures. She stated that
the bill ensures post-operative care following ocular
surgery. She maintained that care by an ophthalmologist
following surgery was imperative for good patient care.
Today's technology makes surgical procedures appear to be
routine. She maintained that although most often the
surgeries are successful, serious complications might occur.
HB 142 provides appropriate ocular postoperative care by an
appropriate professional. She noted that the legislation
required the surgeon to be physically available to a patient
in the community where the surgery is performed for 120
hours following surgery. She added that, after that period,
the surgeon may delegate post operative care to another
person that the surgeon determines qualified to treat the
patient.
Representative Heinze noted the changes proposed by
Amendment #1, which reduces the number of hours from 120 to
72 hours, or three days.
ERIK CHRISTIANSON, OD, KETCHIKAN, testified via
teleconference in opposition to the bill. He noted that in
Ketchikan, the population was not large enough to employ a
full time ophthalmologist. He read from prepared testimony
as follows:
HB142 is a good example of poorly thought out
legislation. I am opposed to the spirit of this
bill. By that I mean that entire premise on which it
is founded is wrong. The premise is that post-
operative care after eye surgery or co-management
needs to be regulated. Co-management of surgical
patients by optometrists is already regulated under
federal law. No other state has this type of law. If
you are regulating co-management between
ophthalmologists and optometrists then why not other
types of surgical specialties arid the local doctors
who will follow their patients. This is not the job
of the legislature!!!
It questions the clinical competence of optometrists
to co-manage patients. Optometrists have been
performing this to a high level for more than 20
years. I have been a member of the Board of Optometry
for 5+ years and we have never had a case brought us
where an optometrist caused a patient harm.
It is an attempt to legislate clinical decision
making on the part of ophthalmic surgeons. If a
surgeon is performing "bad surgery" federal law,
malpractice, referring providers, and the PATIENTS
themselves will cause this surgeon to stop.
It is bad for rural Alaska in that it limits the
potential choices available to these patients.
Currently certain eye surgical procedures are
performed at Ketchikan General Hospital (KGH) and the
ophthalmologists who perform them would have a hard
time managing the 5-day time limit. I do not manage
with these doctors except when their patients develop
problems after they leave. In the 13 years I have
been in Ketchikan I have had to only help out a
handful of times. FIB 142 would not allow me as an
optometrist to help out within the critical first 5
days. Even though only 35 surgeries per year are done
at KGH it offers a choice for those persons who have
difficulty traveling or are cover by Medicaid or
Medicare and cannot afford travel.
Optometrists live where the patient lives. We are the
eye care experts in rural Alaska limiting our ability
to care for our patients is bad for these patients
and the communities we serve.
HB 142 is an attempt to limit patient access to care
it is obviously special interest legislation, and is
both anti-consumer and anti-patient.
Representative Croft asked about the typical surgical
schedule. Mr. Christianson stated that surgeons who came to
Ketchikan, typically from Juneau, generally performed
procedures on Mondays and stayed in Ketchikan until
Thursday, whereas a surgeon from Anchorage might leave the
day after a procedure was performed. He noted that there
was a local optometrist who specialized in early
postoperative care for patients of ocular surgery. He
responded to sentiments by Anchorage ophthalmologists that
don't want to deal with patients treated by an outside
surgeon. He noted that the follow-up optometrist
specializes in the area of postoperative care.
Representative Croft asked if a three-day vs. five-day
period made a difference. Mr. Christianson maintained that
the crux of the problem was that the legislation in the
guise of being helpful affected an entire profession. He
noted that different surgeries had various complication
rates and recovery times, depending on the surgeon and the
procedure.
Representative Stoltze noted that in his community of 35
thousand, there was no practicing ophthalmologist. He asked
about the demographics of practitioners per capita. Mr.
Christianson noted that generally a population of 8 thousand
could sustain an optometrist, whereas an ophthalmologist
with a more extensive education background generally
required a community of at least 100 thousand to sustain a
practice.
Co-Chair Harris cited an oracular surgical procedure
performed on a family member by an outside physician. He
noted that the initial post-operative care was completed the
same day by the surgeon, with subsequent care being the
responsibility of the patient and the clinic that provided
facilities for the surgeon. He asked if this was a typical
schedule.
Mr. Christianson confirmed that this was a standard
procedure. He added that occasionally patients would
sometimes choose to have a procedure performed elsewhere due
to lower costs. He noted that this kind of procedures
worked if Dr. Christianson retained control over making
referrals and was able to do continuous follow-up. He noted
that certain complications would require a further visit to
the surgeon, but stated that these complications were rare
if a patient went to a quality surgeon.
Co-Chair Harris asked how the bill, with the change from 120
to 72 hours, affected the procedure. Mr. Christianson
referenced page 2, and maintained that the bill did not
allow an optometrist to be involved within the set time
period. He stated that only an ophthalmologist or a
physician would be allowed to do immediate follow-up.
HELEN BEDDER, STAFF, REPRESENTATIVE HEINZE referred to line
25 of page 2, and quoted that a co-management agreement
could be agreed to "only if the surgeon confirms that the
person to whom the care is delegated is qualified to treat
the patient during the postoperative period". She pointed
out that they must be "licensed or certified to provide the
care if license or certification is required by law." She
maintained that the language was specifically to allow care
in remote areas where optometrists may not be available.
She noted that following the five (or three) day period, the
surgeon could delegate anyone who is available.
Mr. Christianson questioned the need for the legislation and
asserted that the clinical decision-making of a surgeon was
not within legislative purview. He maintained that the bill
opened this issue for other types of referrals and
questioned why this regulation was required.
Ms. Bedder stated that ophthalmologists had raised the
concern about patient care with Representative Heinze's
office. She noted out that in other surgical areas,
surgeons were responsible for patient care following
surgery. She stated that problems had occurred in Anchorage
with a surgeon who comes to town and leaves without
communicating with an ophthalmologist for follow-up care.
She pointed out that many times the patients were elderly
and it was a burden for them to be treated by a physician
with whom they were unfamiliar.
CARLOS BUZNEGO, M.D., ACADEMY OF OPTHAMOLOGY, D.C. testified
via teleconference in support of the bill. He explained
that this organization represent 27 thousand
ophthalmologists throughout the nation. He explained that
whereas federal regulations address patient protection,
state legislatures were the forum for health policy merits
to be debated and acted upon. He noted that he serves on the
Academy's Governing Committee for State Affairs, as well as
practicing ophthalmology with a focus on cataract treatment.
He maintained that the bill addressed an abuse of surgical
trust between a patient and surgeon. He noted that ocular
care was a rare area when non-physicians may inappropriately
perform postoperative care following surgery.
Dr. Buznego explained that co management was the sharing of
postoperative responsibilities between the operating surgeon
and another health care provider. He stated that an
arrangement might be entered into only if it was in the best
interest of a patient, as in cases where the patient cannot
travel. He maintained that unethical behavior occurred when
a surgeon enters into a co management arrangement with an
allied health provider to economic considerations, as for an
inducement for surgical referrals. He asserted that the
bill would eliminate this unethical behavior by carefully
regulating surgical referrals. He noted that under the
bill, referral would occur only when in the best interest of
the patient and by the judgment of the surgeon to determine
appropriate postoperative care. He stressed that they key
issue was not a commercial considerations, but the ethical
treatment of surgical eye patients.
Dr. Buznego pointed out that cataract surgery or Lasik
surgery often involved complications. He gave the example
of an early postoperative infection. He maintained that
there was no such thing as a specialist in postoperative
cataract surgery. He noted that if a wound was not properly
closed, it required a surgeon to complete the surgery. He
stressed that optometrists were not trained or licensed to
perform such procedures, or to determine postoperative
infections or other surgical complications. He suggested
that surgeons should not be free to leave the state and
leave someone who is not properly trained or licensed to
resolve potential problems.
CHERYL LENTFER, O.D., ANCHORAGE, testified via
teleconference in opposition to the legislation. She
refuted the statement that optometrists were not trained or
licensed in postoperative surgical care, but acknowledged
that they could not close sutures. She also maintained that
many patients in Alaska had been seeing their optometrists
for 30 years, and that it was the optometrists who referred
the patient to a surgeon. She pointed out that she had been
seeing postoperative patients for many years.
Dr. Lentfer referenced her written testimony provided in
member's packets. She pointed out that co-management was an
aspect of health care that had already existed successfully
for many years, and questioned the need to regulate it at
this time. She maintained that such regulation would
ultimately apply to all fields of health care, including
cardiology, oral surgery, etc. She stated that surgeons
suspected of unethical practices should be brought before
the Medical Board, and not regulated by the legislature.
She also pointed out that the bill regulated the amount of
time a surgeon was required to be present in a given
location, which was unrealistic given the variety of follow-
up needed for different procedures.
Representative Stoltze referenced earlier testimony
regarding nurses handling post-operative care. He asked if
in any situation that would be appropriate. Dr. Lentfer
replied that this would only be appropriate in unique
situations, such as if the nurse had specific oracular
expertise.
DR. CARL ROSEN, M.D., ANCHORAGE, testified via
teleconference in support of the bill. He stated that he
was a surgeon specializing in oracular procedures, and noted
that he often performed eyelid reconstruction following
trauma. He commented that, although co-management
originally carried good intentions, a patient protection
bill is currently needed to address abuse of the practice.
He explained that the legislation was needed to support the
patient's best interest, and suggested that in the case of
co-managed care, an equally trained surgeon, preferably an
ophthalmologist, be responsible for the patient's
postoperative care. He maintained that optometrists did not
fill this need, not being trained in the nuances of oracular
surgery.
He noted that the current situation in Anchorage involved
organizations that perform oracular surgery, and then leave
the patients to the care of optometrists. He maintained
that this sometimes resulted in delayed care, and noted that
he saw patients with potentially serious post-operative
complications that resulted from such care. He also pointed
out that occasionally patients were "dumped" on the
emergency room, forcing a local ophthalmologist who is
uninformed to assume the care and liability.
DR. JILL GEERING, O.D., JUNEAU, testified in opposition to
the bill. She read from written testimony as follows:
TAPE HFC 03 - 62, Side A
Arguments Against Alaska Co-Management
1. Co-management of surgical patients by optometrists
is already adequately regulated under Federal law.
In 1980, Congress amended the Medicare statute to
allow payment to doctors of optometry for cataract
post-operative care. The report from the then
Department of Health, Education, and Welfare upon
which this legislation was based concluded, "The
services appear to be effective in patient
management, including the management of aphakic
and cataract patients. They are reasonable, non-
experimental, safe and generally acceptable to the
vision/eye care community and the public." The
Federal law is quite extensive in providing
patient protections and should not be tampered
with. States are avoiding doing this, and the
Alaska bill would be an unwise change.
2. Federal law is premised on protecting patients from
financial exploitation in co-management
arrangements. Neither Federal law nor any state law
has ever questioned the clinical competence of
optometrists to co-manage patients, and
optometrists have been doing so successfully for
over twenty years. There is no public health
justification for the Alaska co-management bill.
3. The Alaska co-management bill effectively
eliminates optometrists from the co-management of
patients by preventing them from being involved in
patient care for 5 days following surgery. This is
harmful to patients.
4. The Alaska bill forces patients to seek out less
available and more expensive ophthalmologic care
for no legitimate health care reason. Again, the co
management regulation adopted by the Federal laws
was not premised on patients being in any health
care danger, but was premised on protecting
patients from being taken advantage of financially.
Both an optometrist's and an ophthalmologist's
ordinary obligations not to commit medical
malpractice would work to prevent any harmful
clinical co-management decisions within the first
five days of surgery. This bill adds nothing to
those protections, and Is a step backwards from
Federal law in that it limits patient access to
care and makes it more likely that patients will
unnecessarily pay more for care (from
ophthalmologists) - exactly what the Federal law
was aimed at preventing.
5. Even if I believed that co-management should be
limited, I would argue against this bill. It is
full of technical flaws and ambiguities.
a) While this doesn't specifically prohibit
optometrists from performing post op care
after the 5-day period, it is a harrier. It
eliminates patient's freedom of choice, and
creates fear. According to the bill
(section C, number 5, and letter g), the
patient is to be made aware of special
risks that may happen to them if they enter
into a co-management agreement. Since there
are no special risks (as Determined by
Congress over 20 years ago), I would like
to see what such a description would say,
because optometrists and other
ophthalmologists, are licensed and
qualified to perform such care,
b) There seems to be a double standard in
regards to many of the exceptions. The
Alaska bill shifts the determination of
patient travel hardship onto the shoulders
of the patient, which is an unworkable
legal standard. The exemption for the
surgeon's travel that says, if the surgeon
will not be available for postoperative
care. ..as a result of the surgeon's
personal travel, illness, etc " is
obviously self serving on the surgeons
part. If the true intent of this bill is to
protect the public, why is it unsafe and
not good medicine for other well trained
eye care professionals to co-manage in
normal circumstances, but if a surgeon is
going on vacation, then it is Ok for others
to co-manage safely?
c) The agreement can only be entered into if
the surgeon confirms that the co-manager is
qualified to treat the patient. This is not
the surgeon's job, this is the licensing
department's job. Does this mean that the
surgeon must contact occupational licensing
before entering into a co-management
agreement?
d) The co-managing doctor cannot further
delegate care to another. What if the co-
managing doctor is sick, ill, or called out
of town on an emergency and the surgeon is
off on vacation? Any referral to a third
doctor would violate this law, but the co-
managing doctor is ethically bound to
arrange care for that patient.
e) An exception is made to US Public Health
Service doctors or US Armed Forces doctors
who are volunteering without pay or other
remuneration. This implies that patients
are safe for co-managing if follow up care
is free, but not safe if it isn't free? Or
does this just mean that the
ophthalmologists shouldn't have to provide
free follow up care...but they are the only
one who should provide follow up care if it
is paid for?
f) Midwives are exempt. This bill would pass
into law a provision that allows midwives
to perform follow up care for someone who
had cataract surgery.
As some of you may know, there is an unfortunate duel
between ophthalmologists and optometrists in this
state. Most of which is professional jealousy.
Optometrists seek to move forward by way of improving
on and learning new techniques to better serve the
citizens of Alaska, Including adding oral medications
to our licensure. Ophthalmologists have opposed that
1
this bill is another attempt at limiting our scope of
care and superseding the Alaska Board of Optometry.
This bill would not only limit us, but it would move
our profession back to the 1960's. I encourage you to
vote no.
DAVID KATZEEK, ALASKA NATIVE BROTHERHOOD, JUNEAU, is a
member of the Tlingit tribe, from the Chilkat tribes in
Haines. He testified in Tlingit and English in support of
the bill. He gave information about the history of his
people's migration to different areas. He maintained that
the bill was supportive of patient's needs. He expressed
his opinion that the bill closes loopholes that allow
professionals from other states to perform services in
Alaska without responsibility to Alaskans. He referenced
the limited entry legislation in regard to salmon fishing.
He maintained that the legislation provided higher quality
care for people not only in rural communities but for all
Alaskans. He observed the contention between professional
groups and emphasized that the eyesight of Alaskans were of
utmost importance and value. He encouraged members to take
the safety of the people into consideration.
Mr. Katzeek stated that, according to the Department of
Health and Social Services, over 50 percent of Native
Americans suffer from type two diabetes, which causes
problems with eyesight.
HB 142 was heard and HELD in Committee for further
consideration.
Co-Chair Williams began a brief at ease at 3:30 pm. The
meeting reconvened at 3:45 p.m.
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