Call to Order and Roll Call
The 5th meeting of the Interim Joint Committee on Licensing and Occupations was held on Friday, October 14, 2016, at 10:00 AM, in Room 129 of the Capitol Annex. Representative Dennis Keene, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator John Schickel, Co-Chair; Representative Dennis Keene, Co-Chair; Senators Joe Bowen, Tom Buford, Julian M. Carroll, Jimmy Higdon, Paul Hornback, Ray S. Jones II, Christian McDaniel, Dan "Malano" Seum, and Damon Thayer; Representatives Tom Burch, Denver Butler, Larry Clark, Jeffery Donohue, Daniel Elliott, Joni L. Jenkins, Adam Koenig, Reginald Meeks, Charles Miller, Jerry T. Miller, David Osborne, Ruth Ann Palumbo, Sal Santoro, Arnold Simpson, Diane St. Onge, and Susan Westrom.
Guests: Representative John Carney; Jessica Estes, DNP, APRN-NP, Vice President, Coalition of Nurse Practitioners and Nurse Midwives; Nathan Goldman, General Counsel, Kentucky Board of Nursing; Kristi Parris, MD, Kentucky Board of Medical Imaging and Radiation Therapy; Christy Trout, Commissioner, Trina Summers, Distilled Spirits and Wine Administrator, Carol Beth Martin, Malt Beverages Administrator, Steve Humphress, General Counsel, Department for Alcohol Beverage Control; Jennifer Doering, Chas Seligman Distributing Company; George Clark, Clark Distributing Co. Inc.; Betty Whittaker, Executive Director, Kentucky Manufactured Housing Institute; Jamie Hylton, Manager and Vice President of Hylton Sales and Rental; Andrew Rutherford, President, Kristi Hall, Kentucky Academy of Physician Assistants.
LRC Staff: Tom Hewlett, Bryce Amburgey, Jasmine Williams, Michel Sanderson, and Susan Cunningham.
Approval of minutes from September 9, 2016 meeting.
A motion to approve the minutes of the September 9, 2016 meeting was made by Senator Schickel and seconded by Representative Santoro. The motion was adopted by voice vote.
Advanced Practice Registered Nurses (APRNs) review of HB 296 from 2016 Regular Session
Representative John Carney said the purpose of HB 296 was to amend the definition of “Practitioner of the Healing Arts” so that it would include APRNs. Under current law, the definition includes those practicing medicine, osteopathy, dentistry, podiatry, optometry, and chiropractic. In rural Kentucky, APRNs provide a vital service for health care. Adding APRNs to the definition of “Practitioner of the Healing Arts” would not expand their scope of practice would will align the regulations with APRNs’ current practice.
Jessica Estes, DNP, APRN-NP, President Elect for Kentucky Coalition of Nurse Practitioners and Nurse Midwives, said that last fall the coalition became aware that administrative regulation 902 KAR 20:260, Special Health Clinics, was being amended to exempt “Practitioners of the Healing Arts” so that the professionals in private practice would not be considered specialty clinics. This meant that APRNs who are in private practice, but not included in the definition of “Practitioners of the Healing Arts,” would be considered to be operating a special health clinic and would experience unnecessary burden and costs. Many APRNs in primary care would have a hard time meeting the regulatory requirements. After help from Representative Mary Lou Marzian, the APRNs were exempted from the regulation. It is the concern of the APRNs that a future statute or regulation would be amended to exempt “Practitioner of the Healing Arts” and have a negative impact on APRNs. Adding them to the definition of “Practitioner of the Healing Arts” would not expand scope of practice but would be a correction to change the statute to mirror modern practice.
HB 296 does not grant authority to APRNs to open pain clinics, as the Kentucky Society of Anesthesiologists asserted. Also, the Kentucky Board of Nursing has determined that APRNs are educationally prepared and clinically competent to utilize fluoroscopy in their practice.
Ms. Estes said that the Kentucky Board of Medical Imaging and Radiation Therapy’s statement that adding APRNs to the definition of “Practitioner of the Healing Arts” would allow them to supervise all licensees in the performance of all procedures is an over generalization. APRNs do not seek supervision that would involve evaluation of job performance, but they need to be able to give general directions during the procedure. The Kentucky Board of Nursing notified the Kentucky Board of Medical Imaging and Radiation Therapy by letter that APRNs were within their scope of practice in utilizing fluoroscopy and the equipment required to perform fluoroscopic procedures.
In response to a question from Senator McDaniel, Ms. Estes said that all other professionals included in “Practitioner of the Healing Arts” do not necessarily practice with the same level of anesthesiology that APRNs currently have.
Pam Hagan, Kentucky Board of Nursing, APRN Practice Education Consultant, said the Kentucky Board of Nursing is responsible for licensing nurses, including APRNs. KRS 314.131 allows the board to issue advisory opinions on those practices. In response to inquiries, the board has issued those opinions specifically on fluoroscopies performed by nurse anesthetists and nurse practitioners. The APRN works with the medical imaging personnel who are operating the equipment. In 2015, the board advised that this is within the scope of practice and that the APRN is qualified to supervise the medical imaging technologist when assisting the APRN in these procedures. However, the Board of Medical Imaging and Radiation Therapy issued a letter to its licensees saying that APRNs could not supervise those technicians.
Representatives of the Board of Nursing and the Board of Medical Imaging and Radiation Therapy have agreed to meet to resolve this issue.
Dr. Kristie Paris, RN, BSN, MD, FACR, said there is a need for APRNs in Kentucky, but allowing APRNs to supervise technicians during a procedure raises concerns. Fluoroscopy is not the same as taking a chest x-ray. The potential for harmful radiation exposure is a real danger when equipment is operated by those without appropriate education and training. It is important that those performing these procedures through the operation of radiation-emitting devices or those supervising medical imaging or radiation therapy personnel be appropriately educated in the safe utilization of that radiation. The inclusion of APRNs in the definition of “Practitioner of the Healing Arts” would exempt them from RT licensure and allow them to operate radiation-producing equipment or administer ionizing radiation for the purpose of medical imaging or radiation therapy. Also, they would be allowed to supervise all licensees in the performance of all procedures. Currently, there is no educational training in the APRN DNP (Doctor of Nursing Practice) or Masters curriculum covering radiation physics, radiobiology, radiation safety, or radiation management. There is a radiological nurse who is certified in radiation protection, biology, pathology, and patient exposure, but these nurses are not allowed to supervise procedures.
In response to a question from Senator McDaniel, Dr. Paris said that, in her opinion, APRNs would become equivalent to a licensed physician if APRNs are defined as a “Practitioner of the Healing Arts.” Placing APRNs in a supervisory role over medical imaging therapists would conflict with federal and state guidelines.
In response to a question from Representative Burch, Dr. Paris stated that the scope of practice for APRNs allows them to perform and supervise radiological procedures, including radiation oncology.
In response to a question from Representative Westrom, Dr. Paris said APRNs do not bill for patients for radiology, but they are allowed to interpret radiology procedures.
Senator Carroll advised Dr. Paris that both professions should meet and work out their differences.
In response to a question from Representative Jenkins, Nathan Goldman, General Counsel for the Kentucky Board or Nursing said there is a disagreement with the APRN telling the technician how to position the instrument being used. Dr. Paris added that there is a definition of supervision in regulation.
Department of Alcoholic Beverage Control follow up on SB 11
Christy Trout, ABC Commissioner, said that, when evaluating SB 11, there are three areas of focus: local responsibility, economic development, and partnerships with the industry and other government agencies, such as the Department of Agriculture.
SB 11 eliminated population requirements in two areas: any incorporated city may hold a local option election; and any city or county can enact ordinances to permit Sunday alcohol sales. ABC also has initiated a simultaneous renewal schedule, with the exception of Louisville, and an economic hardship exception was included for any local community that has a restaurant with limited seating.
This led to a major increase in local option elections. Since July of this year, there have been 23 local option elections, and there are seven more pending. Hundreds of license applications have been filed with the department. Twenty counties remain completely dry.
Regarding economic development, SB 11 created two new licenses. The department has received an application for a “pedal pub” from Covington and expects to receive an application from Lexington and another from Louisville. This allows patrons to board the pedal pub with an unopened package and drink while on the pub in nondescript containers.
The Rectifier license was divided into A and B to reduce the cost to small producers. The Class A rectifier produces greater than 50,000 gallons annually, the Class B license is for those who produce less than 50,000.
Due to the increase in popularity of microbreweries, SB 11 increased the production cap on malt beverages to 50,000 barrels per year. Microbrewers can also sell their product by the package and by the drink at fairs and festivals located in wet territories. Distilleries have also seen an increase due to the authorization of a moist precinct local option election. They may also acquire an NQ3 license for retail sale by the drink.
Small farm wineries have an increased production cap from 50,000 gallons per year to 100,000 gallons per year. They are allowed to “custom crush” fruit from other small farm wineries. There are three wineries offering this service.
Bed and Breakfast Inns may apply for an NQ3 license to sell alcoholic beverages to registered overnight guests. Since July 15, three Bed and Breakfast Inns have applied for this license.
In response to a question from Senator Buford, Steve Humphress said a fiscal court cannot pass an ordinance to allow a restaurant in the county, outside city limits to sell alcohol. If the county is moist, there would have to be a local option election to authorize alcohol sales. Further, there could be a limited restaurant election county wide, however, there cannot be a limited restaurant precinct election.
In response to a question from Representative Clark, Ms. Trout said there have been a number of regulations filed. Mr. Humphress said the only regulation pending deals with providing refrigerated coolers to retailers.
Senator Thayer commented that the new commissioner is very capable of performing an important job. The committee is supportive of free enterprise, and alcohol is heavily regulated in Kentucky.
Jennifer Doering, Chas. Seligman Distributing Company, said that the distributors support of many of the things in SB 11. However, there was language added toward the end of the session regarding refrigerated coolers, allowing a distributor or brewer to give away refrigerated coolers. Distributors were included in the bill without their knowledge or comment. Distributors are not in favor of this and see it as giving away something of value. It is a violation of the checks and balances that guide the three tier system of alcohol distribution. This erosion introduces into Kentucky a pay-to-play relationship between the brewers, distributors, and the retailers. The language is a benefit to large brewers and potentially gives a pressure point to distributor compliance.
George Clark, Clark Distributing Company, a Miller Coors distributor, said allowing a brewer or distributor to give free refrigerated coolers to a retailer is an assault on the three tier system of checks and balances. This system is recognized as the basic foundation of Kentucky statutory law. It is in direct conflict with KRS 244.590. This statute explicitly prohibits a brewer or distributor from furnishing, giving, renting, lending or selling to a retailer any equipment to affect the choice of product. This change is also in direct conflict with the Alcohol and Tobacco Tax and Trade Bureau, who regulate alcohol federally. As drafted, this change will only lead to commercial bribery or pay-to-play. The distributors will seek to remove refrigerated coolers in 2017.
Senator Schickel commented that a bill like SB 11 required tremendous consensus in order to move it forward. He encouraged Ms. Doering and Mr. Clark to work with ABC on regulations regarding the coolers.
Senator Thayer said Senator Schickel worked very hard on SB 11. The cooler provision was added late in the House. If it had been removed, it would have killed the bill. In order for the good provisions to be passed, the Senate left that provision in the bill. Senator Schickel’s advice is very strong and a regulation could be the solution.
Representative Clark said he was upset by Mr. Clark’s comments regarding bribery, and he could have better said that the bill brought an unlevel playing field. The committee’s integrity did not need to be called into question. He said that the tone does not serve the industry very well.
Kentucky Manufactured Housing Institute.
Betty Whittaker, Executive Director, Kentucky Manufactured Housing Institute, said that a bill passed in 2000 that allowed for a title on a manufactured home to be surrendered and become part of the real property deed or deed of trust. This gave consumers the opportunity to receive mortgage interest rates. However, when a person surrendered a title on a single section home, because the title became part of the property deed, there is no longer a title to sell the single section home apart from the property. Other states have made a provision to allow selling the home by filing an affidavit with the county clerk. This allows the owner to pull the home away from the property, file with the PVA to acquire a title, and trade-in or sell the single wide and purchase a multi-section or build.
Jamie Hylton, Manager and Vice President of Hylton Sales and Rentals, Ivel, KY, said this past spring a customer wanted to upgrade a home. The person wanted to trade the current home for a larger one. However, the local bank said that there was no title on the trade-in because the title had been surrendered. Therefore, he could not sell the trade-in sitting on his lot.
Ms. Whittaker said that the Institute had met with county clerks and had been provided with language that other states have used to allow home owners to separate their house from the property in order to obtain a title for the house.
Physician Assistant Prescriptive Authority.
Senator Buford said 49 states allow Physician Assistants to write controlled substances prescriptions. Kentucky is the only exception, and he has requested a bill to change this. The University of Kentucky is supportive of this legislation.
Kristi Hall, Kentucky Academy of Physician Assistants (PA), said that the legislature has eliminated restrictions on the PA profession that were negatively impacting patient access to care. The PA mission is to eliminate all restrictions so that PAs in Kentucky can practice medicine to the full extent of their training. In the 2017 legislative session, KAPA will be seeking to modify prescription authority for PAs to prescribe schedule II – V controlled substances. This will allow PA-Physician teams to serve patients in a more efficient manner. Kentucky is the only state where PAs cannot prescribe controlled medications. Missouri and West Virginia are exceptions where the PAs are allowed to only write prescriptions for schedule III – V. Over 50 percent of students who graduate as PAs in Kentucky leave to practice in other states where there are fewer restrictions on PA practice. Three universities in Kentucky have PA programs: UK, The University of the Cumberlands, and Sullivan University. The training model is based on the physician medical model training and is Master’s level, with extensive graduate training in pharmacology. PAs must pass a National certification in order to practice. All PAs must pass a new re-certification every ten years.
Physician Assistants in Kentucky graduate with a thorough understanding of controlled substances, and that foundation improves with clinical practice. Students are familiar with electronic medication databases, including Meth-Check and Kentucky All Schedule Prescription Electronic Record (KASPER). Under proposed legislation to prescribe controlled substances, a supervising physician and PA would be required to submit an application to the Kentucky Board of Medical Licensure for approval. PAs would also be required to register with the federal DEA, and the state KASPER system. This legislation is not a mandate and physician/PA teams who do not want the authority are not required to submit an application.
This legislation will allow a supervising physician to authorize a PA to prescribe controlled substances. The physician/PA team best determines the level of authority that is needed to give the most efficient care to their patients. PA prescriptive authority for schedule medication will also provide more accurate tracking of controlled prescriptions. Modified prescriptive authority in Kentucky will not only improve patient access to health care, but will reduce the loss of PAs to other states. APRNs have had prescriptive authority for schedule II – V in Kentucky since 2006. The proposed legislation will remove a discrepancy in health care access for Kentuckians. Previous PA legislation has been supported consistently.
In response to a question from Representative Jerry Miller, Andrew Rutherford, President, Kentucky Academy of Physicians Assistants said that in his first job in Cadiz, KY, due to needs of providers, he was the only provider. If there was a patient with broken bones, he would have to refer that patient to another emergency facility because he was unable to prescribe pain medication. This incurs more billing. Also, certain procedures that PAs are trained to do need sedation medication, which is schedule II medication. Most supervising physicians are onsite.
Senator Buford commented that patients in Kentucky who want to receive these controlled schedule prescriptions will cross borders to states that allow this authority. They will come back to Kentucky with a large supply of a controlled substances. What they do not need they will sell. Allowing them to obtain that prescription in Kentucky will not lead to an excessive amount of the drug.
In response to a question from Senator Schickel, Ms. Hall said PAs will only be able to prescribe opiate based prescriptions if their supervising physician authorizes them to do so. Senator Schickel opined that current legislation has not solved the drug problem, rather it has made it worse. There is an historical crisis in Kentucky with opiate based products.
Representative Koenig commented that he does not know what schedule II – V drugs are and would like more information. Ms. Hall said that currently PAs prescribe all non-schedule medication, which is any medication that does not have the potential for abuse. She said she would provide the information Representative Koenig requested.
In response to a question from Representative Elliot, Ms. Hall said the difference in training between a Nurse Practitioner and a Physician Assistant is the training model. PAs follow the physician model. However, the level of training is no different than the Nurse Practitioner.
In response to a question from Representative Jenkins, Mr. Rutherford said PAs are trained about the misuse of opiate substances and the addictiveness of those drugs.
Senator Schickel announced that the next meeting for Licensing and Occupations will be November 28, at 10:00 AM at Turfway Park in Latonia. Further, there will be a meeting, Thursday, December 15th, 10:00 AM in Room 129 in the Capitol Annex.
There being no further business, the meeting was adjourned at 11:26 AM.