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News & Press: Advocacy & Legislative Updates

December Regulatory Update

Friday, January 8, 2016   (0 Comments)
Posted by: Sabrina Noah
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The December issue of the Louisiana Register contains several proposed rules which are of interest to our members.  As part of our continued efforts to keep you informed, we have developed the following summaries of the proposed administrative rules.  Please submit any comments or concerns about any of the proposed rules mentioned below to Wes Hataway, LSMS vice president, legal affairs and general counsel at wes@lsms.org prior to the dates designated below each rule discussion. 

 

POTPOURRI


Board of Nursing – Advanced Practice Registered Nurses


The Board of Nursing (BON) previously introduced proposed rules regarding CRNA’s in the October edition of the Louisiana Register.  The LSMS expressed concerns regarding the proposal in written comments sent to the BON in advance of the public hearing on November 30, 2015.  Specifically, the LSMS disagreed with the provision which defined the scope of practice for CRNA’s as that which is “delineated by the American Association of Nurse Anesthetists”.  The LSMS viewed the provision as effectively circumventing the legislature and the BON’s governing and regulatory authority to define CRNA’s scope of practice. 

 

As a result of the written comments as well as oral comments received at the public hearing, the BON has agreed to amend the proposed rules.  Accordingly, the BON has deleted the provision dealing with the American Association of Nurse Anesthetists determining the scope of practice for CRNAs.  In addition, the BON proposal now references existing state law as the authority for determining scope of service and ancillary services of CRNAs. 

 

A public hearing will be held on January 26, 2016, regarding the amendments.  The LSMS will be in attendance. 

 

NOTICE OF INTENT – PROPOSED RULES


Louisiana State Board of Medical Examiners


As we have chronicled, the LSBME has introduced rules regarding complaints and investigations pursuant to LSMS sponsored Act 441 of the 2015 Legislative Session.  Given the time frame set forth in Act 441, the LSBME was obligated to promulgate rules by January 1, 2016.  The LSBME fulfilled its obligation and has promulgated final rules in the December edition of the Louisiana Register (see the Final Rules section for a complete summary)

 

As we discussed in our previous Act 441 update, the LSBME agreed to make changes to the original proposed rules as a result of the written and oral comments received at the October 26, 2015, public hearing.  However, it was agreed that the board would make the changes by way of separate rule rather than by amending the originally proposed rules.  It was feared that substantive amendments would cause them to miss the legislative deadline of January 1, 2016.  As a result, the LSMBE has filed this separate Notice of Intent to make the requested corrections to the original proposed rules.  The changes are as follows:

 

  • Section 9707 – At the request of LSMS and others, the LSBME has deleted the provision granting the board the authority to issue subpoenas during the processing of a compliant.  The authority to issue subpoenas is now limited to Section 9709 “Preliminary Investigation” (in which subpoenas are strictly limited to determination of jurisdiction and sufficiency of the evidence) and Section 9711 “Formal Investigation”.
  • The proposed rules amend Sections 9709 to allow for the preservation of complainant testimony or complaint witness testimony by way of affidavit rather than sworn testimony under subpoena.
  • In the original proposal, at the conclusion of the “preliminary investigation”, the LSBME would recommend to the board that the matter be closed or proceed to “formal investigation”.  If the board did not approve the LSBME’s recommendation to close, the matter would proceed to “formal investigation”.  The LSMS and others expressed concerns that initiating a formal investigation might carry certain detrimental reporting and employment requirements on a physician.  In response, the proposed amendments now state that if the board does not approve of a complaint closure following a preliminary investigation, the board shall direct the LSBME staff to “undertake additional review as may be necessary or indicated within a specified period of time”. 
  • In the original proposal, the licensee would be offered an opportunity to attend a “conference”, if the evidence obtained in the formal investigation indicated a violation of the law.  A concern was raised as to who could participate in the conference.  The proposed amendments specifically identify the parties that may participate in the conference (lead investigator or investigator assigned to the matter, legal counsel for board, physician and physician counsel).
  • The original proposal stated “formal investigations shall be completed within 36 months after initiated by the board”.  The amendments reduce the time frame to 24 months. 

 

The full text of the proposed rules can be found here.  


A public hearing will be held on the proposed amendments on January 25, 2016, at 9 am.  The hearing will be held at the office of the Louisiana State Board of Medical Examiners located in New Orleans.  The LSMS will be in attendance and will update you following the hearing. 


Department of Health and Hospitals –Direct Service Workers Registry


DHH has amended provisions regarding the Direct Service Worker Registry.  In 2005, legislation was passed pertaining to direct service workers who were defined as “unlicensed persons who provide personal care or other services and support to persons with disabilities or to the elderly to enhance their well-being, and who is involved in the face-to-face direct contact with the person.”  The legislation required DHH to maintain a registry of individuals for whom specific findings of abuse, neglect, exploitation or extortion have been substantiated by the department, an administrative law judge or court of law. 

The amendments require “licensed health care providers” to access the registry to determine if there is a finding that a prospective hire or currently employed direct service worker has been determined to have committed abuse or neglect of an individual being supported or misappropriated the individual’s property or funds.  If there is such a finding, the prospective worker shall not be hired nor shall a current employee have continued employment.  Furthermore, the amendments require health care providers utilizing direct care workers to have “a written process to check the registry every six months to determine if any currently employed direct service worker has been placed on the registry.” 

 

The full text of the amendments can be found here.

 

A public hearing has been scheduled for January 28, 2016 at 9:30 am.  The hearing will take place at the Bienville Building located at 628 North Fourth St. in Baton Rouge.  If you have any comments regarding these amendments, please submit them to Vice President of Legal Affairs, Wes Hataway, at wes@lsms.org prior to the hearing date. 

 

FINAL RULES


Department of Health and Hospitals – Board of Examiners of Psychologists


This amendment provides for an exemption for emeritus licenses until 2015 and 2016.  Emeritus licensees who hold an odd license will begin accruing continuing education hours on July 1, 2015 and will report by June 30, 2017.  Emeritus licensees who hold an even license will begin accruing continuing education hours on July 1, 2016, and will report by June 30, 2018. 


Department of Health and Hospitals – Board of Examiners of Psychologists


Act 137 of the 2014 Legislative Session created “provisional licenses” for psychologists.  The rules establish fees which can be collected for those seeking a provisional license.

 

The full text of the final rule can be read here.  


Department of Health and Hospitals – Board of Examiners of Psychologists


Act 136 of the 2014 Legislative Session established criteria for “licensed specialist in school psychology”.  The final rules establish an advisory committee, further define the criteria for licensure, define criteria for school programs, and determine licensing fees.

 

The full text of the final rule can be read here.


Louisiana State Board of Medical Examiners


LSMS sponsored Act 441 of the 2015 Legislative session required the LSBME to adopt rules regarding complaints and investigations prior to January 1, 2016.  The rules establish a clear process for filling and reviewing complaints, conducting preliminary and formal investigations and adjudication.  It is important to remember that while these rules are final, they will be further amended by the rules introduced this month and discussed previously in the “Notice of Intent” section.  It is anticipated that the newly introduced amendments should become final rules in the Spring. 

 

The full text of the rules can be found here.


The LSMS would again like to thank all who have participated in this process and the development of these much needed rules.

 

Louisiana State Board of Medical Examiners


The board has adopted rules governing physicians who utilize therapeutic marijuana in the treatment of their patients who are suffering from a qualifying medical condition, LAC 46:XLV.Chapter 77. These rules are adopted in order to comply with the legislative mandate contained in Act 261 of the 2015 Session of the Louisiana Legislature, amending R.S. 40:1046

 

The full text of the rule can be found here


The major obstacle in Act 261 is it allows physicians to “prescribe” therapeutic marijuana.  Accordingly, it is important to remember that it is still against federal regulation to prescribe a Schedule 1 drug.  In the development of its rules, the LSBME seems to anticipate that state law will be amended at some point to allow for the “written request” or “physician recommendation” of therapeutic marijuana.  Regardless, since state law only allows for the “prescribing” of marijuana, the LSBME recommendation form should not be utilized at this time. 

 

Department of Health and Hospitals – Bureau of Financing


The final rule states there shall be no limits placed on the number of federally qualified health center visits (encounters) payable by the Medicaid program for eligible recipients. 

 

Department of Health and Hospitals – Bureau of Financing


Clinic services-physician services provided in a clinic in an outpatient hospital setting shall be considered physician services, not outpatient services, and there shall be no limits placed on the number of physician visits payable by the Medicaid program for eligible recipients.

 

Additionally, there shall be no limits placed on rural health clinic visits (encounters) payable by the Medicaid program for eligible recipients.


Finally, the Medicaid program provides coverage and reimbursement for outpatient physician visits in the Professional Services Program. There shall be no limits placed on the number of physician visits payable by the Medicaid program for eligible recipients.


Department of Health and Hospitals – Pain Management Clinics


The final rule pertains to the ownership, licensing and administration of pain management clinics not subject to exemption for the state of Louisiana. 

 

The full text of the rule can be read here

 

Department of Health and Hospitals – Office of Public Health


The final rule makes the necessary changes which are required to enforce the new ban on minors’ use of tanning equipment enacted during the recent Regular Session of the Louisiana Legislature.

 

Louisiana Workforce Commission – Office of Workers’ Compensation


Payment of all uncontested portions of a complete medical bill shall be made within 30 calendar days of receipt of the original bill, or receipt of additional information requested by the insurance carrier allowed under the law.

 

If you have any questions or concerns regarding any of the items mentioned in this update, please contact our Vice President of Legal Affairs at Wes Hataway at wes@lsms.org.

 


Contact Us

Louisiana State Medical Society

6767 Perkins Road, Suite 100
Baton Rouge, LA 70808

Ph: 800.375.9508 | 225.763.8500
Fax: 225.768.5601

publicaffairs@lsms.org
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