Senate Health and Human Services and House Health COR for the Sunset Reviews of the Hospital Advisory Board, Board of Pharmacy, Board of Physical Therapy and Sunrise Applications of In-Home Care Industry, Chiropractic, Midwives, Optometric Association

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ARIZONA STATE LEGISLATURE

Fifty-first Legislature –First Regular Session

SENATE HEALTH AND HUMAN SERVICES AND HOUSE OF REPRESENTATIVES

HEALTH COMMITTEE OF REFERENCE FOR THE SUNSET REVIEWS OF:

ARIZONA STATE HOSPITAL ADVISORY BOARD

ARIZONA STATE BOARD OF PHARMACY

ARIZONA STATE BOARD OF PHYSICAL THERAPY

AND THE SUNRISE APPLICATIONS OF:

ARIZONA IN-HOME CARE INDUSTRY

ARIZONA ASSOCIATION OF CHIROPRACTIC

ARIZONA ASSOCIATION OF MIDWIVES

ARIZONA OPTOMETRIC ASSOCIATION

Minutes of Interim Meeting

Tuesday, December 10, 2013

House Hearing Room 4 -- 10:00 a.m.

Co-Chairman Carter called the meeting to order at 10:12 a.m. and attendance was noted by the secretary.

Members Present

Senator Nancy Barto, Co-Chairman Representative Heather Carter, Co-Chairman

Senator David Bradley Representative Paul Boyer

Senator Kelli Ward Representative Kate Brophy McGee

Senator Kimberly Yee Representative Eric Meyer

Representative Victoria Steele

Members Absent

Senator Linda Lopez

ARIZONA ASSOCIATION OF MIDWIVES

Co-Chairman Carter announced that the sunrise application for the Arizona Association of Midwives was withdrawn.

ARIZONA STATE HOSPITAL ADVISORY BOARD

Presentation by Legislative Staff

Ingrid Garvey, Majority Research Analyst, noted that Laws 1984, Chapter 127, created the Arizona State Hospital Advisory Board (Board); outlined in statute are the membership requirements, duties and responsibilities. In November 2003, the Senate and House Committee of Reference (COR) met and recommended that the Board be continued for 10 years, which was enacted in the 2004 Legislative Session. The Board is currently inactive; the last appointment to the Board was in 2006 and the last member’s term expired in 2009.

Response by the Arizona Department of Health Services

Colby Bower, Chief Legislative Liaison, Arizona Department of Health Services (ADHS), related that the Board was created when the Arizona State Hospital (ASH) was the center of the Arizona behavioral health system amid concerns about homelessness when someone was discharged, as well as funding and other issues. It is a separate board to advise the
Deputy Director and Administrator at ASH on issues outlined in statute. He recommended transferring the following members from the Board to the current ASH governing body, adding that the other members are no longer necessary and it is difficult to fill the positions:

· Two family members of a person who is Serious Mentally Ill (SMI)

· One layperson

· One attorney

· One non-psychiatric medical practitioner

Mr. Bower responded to questions concerning three deficiencies cited by the Centers for Medicare and Medicaid Services (CMS) at ASH. He said ADHS submitted a plan of correction in November 2013; CMS will conduct an unannounced survey of ASH focusing on those areas and ensuring the plan submitted is implemented and effective.

In response to further questions, Mr. Bower indicated that moving two family members with SMI to the governing board where there is already one patient family member will balance representation on the board; however, he is willing to meet with Members in stakeholder meetings to determine the best representation. The membership can be changed within 30 to 45 days; meetings are held monthly and a draft of new bylaws and new membership is already available.

Co-Chairman Carter said a stakeholder meeting may be held at which the draft can be provided.

Discussion and Recommendations by the Committee of Reference

Co-Chairman Barto moved that the Committee of Reference recommend to the full Legislature that the Arizona State Hospital Advisory Board terminate on the statutory date of July 1, 2014 and authorize
Legislative Council to draft any technical and conforming changes. The motion carried by a roll call vote of 8-0-0-2 (Attachment 1).

ARIZONA STATE BOARD OF PHARMACY

Presentation by the Office of the Auditor General

Robin Hakes, Auditor General’s Office, gave a powerpoint presentation on the Performance Audit and Sunset Review of the Arizona State Board of Pharmacy (Pharmacy Board) (Attachment 2). In response to a question, she clarified that the 40 samples from fiscal year
(FY) 2011 and 2012 license and permit files (Page 5) was taken from 9,993 license applications and 1,817 permit applications.

Representative Meyer questioned if documentation for the remaining applicants was reviewed and if any missing information was requested.

Response by the Arizona State Board of Pharmacy

Hal Wand, Executive Director, Arizona State Board of Pharmacy, pointed out that fingerprints are not required of pharmacists. He clarified that the Pharmacy Board only obtained sufficient documentation of the 40 samples identified in the audit; there is no plan to check on the remainder unless a recommendation is made by the Committee. He indicated that the
Pharmacy Board accepted all of the audit recommendations, which are either in the process of implementation or will be done quickly.

In response to a question, Mr. Wand related that the main violations found in the sample related to approval of zoning for permit holders, which is difficult to obtain from some communities. The statute says the Pharmacy Board may require zoning; however, the Pharmacy Board’s rule says shall. Also, 25 pharmacists from Saudi Arabia needed a signed letter from the dean at the college at the University of Arizona, which was in the file of 24 pharmacists. The other pharmacist was notified that there was no letter in his file, after which it was received.

Co-Chairman Carter and Co-Chairman Barto discussed continuing the Pharmacy Board for
8 years instead of 10 years.

Debbie Davenport, Auditor General, advised the Committee of the follow-up process by the Auditor General’s Office.

Representative Meyer questioned if follow-up is needed on the remaining applicants to ensure all of the requirements were met and if a discussion should be held on whether pharmacists should be fingerprinted. Mr. Wand replied that the Pharmacy Board is proposing a bill for all licensees to have fingerprint checks. There is also a rule change on the docket for the Governor’s Regulatory Review Council (GRRC) to eliminate the zoning requirements. He indicated that the results from the sample size do not pose a problem that affects public health.

In response to further questions, Mr. Wand conveyed that most licenses are for two years. The proposed bill requires documentation to be checked and fingerprinting for initial applications, but it could be amended to include renewals. There are about 10,000 pharmacists in the state. He added that the Pharmacy Board does not have the staff to conduct a retroactive review nor does he know the cost. The Pharmacy Board has approximately $450,000 in its carry-forward balance, which could be appropriated by the Legislature for that purpose.

Discussion and Recommendations by the Committee of Reference

Senator Barto moved that the Committee of Reference recommend to the full Legislature that the Arizona State Board of Pharmacy be continued for eight years until July 1, 2022 and authorize staff to draft conforming legislation. The motion carried by a roll call vote of 8-0-0-2 (Attachment 3).

ARIZONA OPTOMETRIC ASSOCIATION

Presentation by Legislative Staff

Ryan Sullivan, Majority Assistant Research Analyst, related that the Arizona Optometric Association (Association) submitted a sunrise application to increase the scope of practice. The Association is requesting that optometrists be able to practice all forms of medicine based upon what skills and knowledge is trained, board-tested and professionally recognized within their scope of practice.

Public Testimony

Michael Levitt, Legislative Analyst, Arizona Ophthalmological Society, opposed the sunrise application. He referred to a letter from Dr. Susan Day, Chair of Ophthalmology at the California Pacific Medical Center in San Francisco, who is known as a leader in the field of pediatric ophthalmology (Attachment 4). He related Dr. Day’s credentials and asked the Committee to consider her views.

Response by the Arizona Optometric Association

Don Isaacson, Arizona Optometric Association, stated that the sunrise application requests, with certain exceptions, that the optometry profession move from a prescriptive authority and pharmaceutical authority to a general authority while maintaining certain key restrictions. In the late 1960s and early 1970s, all optometry schools began offering four-year doctorate level programs that incorporated clinical and academic training, like dentistry and podiatry. Dentists and podiatrists have full pharmaceutical authority and as new drugs and treatments develop, they are automatically incorporated, but in Arizona, optometry has a very prescriptive micro-managed approach where there is a listed designation of certain oral pharmaceuticals in addition to all topical pharmaceuticals. Surgery is not part of optometry so it is specifically excluded. He submitted that it is time for optometrists to be like dentists, podiatrists, medical doctors (MD) and doctors of osteopathic medicine (DO).

Mr. Isaacson indicated that as the optometric profession has expanded, optometrists have been better able to serve patients in underserved and rural areas. Optometrists have full oral prescription authority in 23 states and there have been no complaints or concerns. He discussed claims by ophthalmologists about public safety and the use of dangerous drugs, noting that optometrists are also concerned about public safety and all drugs are dangerous if they are prescribed incorrectly. He said optometrists have low-claim, low-exposure practices in terms of malpractice compared to ophthalmologists. The Affordable Care Act is expected to cause a shortage of health care professionals which will place more pressure on the current system. In Arizona, all other medical professions can practice to their fullest scope, except optometrists, whose patients are the losers.

Mr. Isaacson contended that ophthalmologists are asking that a profession that is trained and tested and has shown it is capable of bringing health care to the public be artificially limited below its scope without any evidence of justification, which is not done for any other profession. He respectfully asked the Committee to approve the sunrise application.

Public Testimony (continued)

Trish Hart, Arizona Ophthalmological Society, noted that the Members were provided with the following (Attachment 4):

Letter from Dr. Susan Day
Response to the Appendix for the Optometric Sunrise Report
Training Comparison between optometrists and ophthalmologists
Information on Rural Coverage/Arizona Medical Eye Unit

She submitted that the sunrise application is vague and allows optometrists unlimited authority to prescribe oral drugs and perform injections. The proposal does not provide any training or additional continuing education to perform these procedures, which is very important. Because of the vagueness of the proposal, it poses patient safety risks and quality of care issues that are not in the best interest of the citizens of the state. She respectfully asked the Committee to oppose the sunrise application.

Dr. Daniel Briceland, Arizona Ophthalmology Society, opposed the sunrise application. He contended that there is a dramatic difference in the education and training of optometrists and ophthalmologists. The four years of medical school required for ophthalmologists allows exposure to the entire human body and patients in all settings. Ophthalmologists then go on to four to six years of additional medical training and residency. While in residency, at the University of Arizona, for example, there are four residents per year whereas in a school, there are probably 60 to 100 students, which dilutes the education. He added that patient safety and quality of care cannot be compromised with these complex medical conditions, even though it may require a 20- or 30-minute drive for the patient.

Dr. Pamela Potter, Arizona Optometric Association, spoke in favor of the sunrise application. She conveyed that she is a Professor/Chair of Pharmacology at Midwestern University where optometrists and dental students receive training for two years in basic science, including pharmacology. Both receive 70 hours of general pharmacology; optometry students have an extra 20 hours of ocular specific pharmacology. At the end of the four years, dentists have unrestricted prescription rights and optometrists do not. She said that 15 percent of the questions on the national board test are on pharmacology, which includes 5 percent on the treatment of glaucoma, mostly done with pharmacological agents. Students practice in different parts of the country and many states have unrestricted prescribing rights. Schools have a mandate to ensure that all students have the same exposure and knowledge of drugs as a dental or medical student.

Dr. Brian Rose, Ophthalmologist; President, Arizona Ophthalmological Society, spoke against the sunrise application. He testified that people in the state with serious eye diseases requiring the use of injections or the powerful and potentially dangerous medications requested in the sunrise application deserve to have their care provided by physicians whose training makes them most qualified to diagnose and treat. Living in a more remote part of the state should not and currently does not deprive people of that advantage. Rural Arizonans have access to ophthalmologic care in three ways (Attachment 4):

Locations of practices throughout the state
Arizona Medical Eye Unit
Patients with urgent life-threatening or sight-threatening conditions are transferred from emergency rooms and hospitals to secondary tertiary care centers in the Valley and Tucson where they are taken care of by on-call ophthalmologists, hospitalists and appropriate sub-specialists

Dr. Michael Lamb, Barnet Dulaney Perkins Eye Center; State Board of Optometry, spoke in favor of the sunrise application. He related that he has been in practice for 30 years. He is on staff at Carl T. Hayden Veterans Administration (VA) Hospital where he has full prescriptive authority, but once he leaves the facility, he no longer has that authority. Ophthalmologists have very similar training to optometrists who do not go through an extra four to six years because they do not perform surgery. Optometrists want to be able to treat patients with their knowledge but many conditions require immediate use of oral medications that optometrists cannot prescribe.

Dr. James Meador, Ophthalmologist; Arizona Ophthalmological Society, spoke against the sunrise application (Attachment 4, Response to Appendix to Optometric Sunrise Report).

Co-Chairman Carter commented that there has been some discussion about modifying the sunrise report and asked for clarification of what is being requested.

Mr. Isaacson related that he had a conversation with Representative Meyer that focused on four new categories of pharmaceutical and two cleanups:

Expansions:

Oral carbonic anhydrase inhibitor
Oral steroids
Fluoroquinolone
Injectable steroids, limited to the eyelid for chelation and other treatment

Cleanups:

Continued use of Hydrocodone, a Schedule III controlled substance that is going to be reclassified by the Food and Drug Administration (FDA) to Schedule II
Elimination of the requirement that supportive equipment and supplies relating to the use of epinephrine auto-injectors be maintained in the licensee’s office

Dr. Meador concluded his presentation, adding that the public would not benefit from the proposed expansion of practice, which should be totally rejected.

Dr. Michael Kozlowski, representing self, spoke in favor of the sunrise application. He stated that he is a professor at the Arizona College of Optometry at Midwestern University. While he appreciates the necessity and importance of on-the-job training, and in optometry the same amount of residency training may not be provided, much more didactic and classroom training on treatment of the eye and use of eye medications is provided than for several other professions. These are medicines that have been used for a long time and it is very easy to train people on how to use them safely. Most optometrists only want to provide better patient care for disorders they are already treating. He said he ends up referring a patient with a mild condition because he is not able to administer these medications orally or by injection.

Dr. John Leander Po, infectious diseases specialist; representing self, spoke against the sunrise application. He stated that he is an Assistant Professor at the University of Arizona's College of Medicine in Phoenix and Tucson. He is privileged to be outside this argument between ophthalmologists and optometrists. The attitude that optometrists do not need as much training as ophthalmologists to understand how these medications work is the kind of attitude that has gotten the medical community into trouble with multi-drug-resistant organisms. He said the idea was raised that this is a natural progression and there is no evidence of harm; however, this is not a situation where evidence can be conveniently provided. If certain states have done this, perhaps a case control study should be conducted to determine if there is any benefit.

Dr. Timothy Hodges, Ophthalmologist, representing self, stated that he has a private practice in Tucson with his wife, who is an optometrist. When he finished training in ophthalmology at Walter Reed Army Medical Center in 1989, he ran the Frankfurt Army Regional Medical Center in Frankfurt, Germany for two years where 12 optometrists provided a high level of primary care to soldiers and their families, and the system worked very well. In the last 21 years, optometrists have received better training but do not want to perform surgery like ophthalmologists. Optometrists want to provide primary care, which he has seen done very responsibly.

Dr. Christina Sorenson, representing self, spoke in favor of the sunrise application. She related that she has been an optometrist for over 25 years and outlined her background. She submitted that optometrists do have the education, experience and national standardized testing that stands up to psychometric verification. The National Center of Clinical Testing in Optometry requires that all 21 schools and colleges of optometry ensure that every student who graduates attains the level of competence needed to practice in a safe and effective manner, which includes injectable skills. Every medical and healthcare professional refers when it is appropriate and a review of insurance incidents will show that optometry has one of the lowest of all primary care professions. Optometrists want to provide care for patients of Arizona and make appropriate referrals in a timely expedient manner to provide the best care possible.

David Landrith, Vice President of Policy and Political Affairs, Arizona Medical Association, made the following points:

He is concerned about public safety, dangerous drugs and lack of education, although it is more about training than education, which is where the great difference is between the professions.
This sunrise application is no longer what it was when he last heard about it, so he has not had an opportunity to obtain input from doctors; however, he is certain doctors oppose the injectable and steroid provisions.
This same profession asked to have the MD or DO taken off the Arizona Board of Optometry (Optometry Board) last year, but now has this huge proposal requiring expertise on the Optometry Board to sort out problems that may arise, which “flies in the face” of what the profession did last year.
Complaints against ophthalmologists were probably not about the same things, or at least the same diseases. Also, ophthalmologists have deeper pockets than optometrists so people go after those who have money.
The Affordable Care Act may create a shortage in primary care, but in almost every profession expect optometry, that is being taken care of by team management. The optometry profession insists on asking for privileges that increase the ability to stand alone rather than working on a team approach.
It only takes one missed diagnosis on a new drug to cause irreparable harm.

Mr. Isaacson returned to the podium and made the following statements:

The sunrise application maintained some key restrictions such as no surgery, no oral pharmaceuticals for children six and under, consultation if there is no improvement after 14 days and Schedule III controlled substances only, except for hydrocodone.
This comes down to one issue, which is the allegation by the ophthalmology profession and the Arizona Medical Association that the training optometry students receive is inadequate, which criticizes 23 public and private schools. There is no forum, study or expert report anywhere to back that up.
He discussed a possible compromise with Representative Meyer.
Removing the MD from the Optometry Board last year was contentious. It was the only board in the world with an MD on it and it had been an unproductive role in the past.
As far as the team approach, he has no idea what Mr. Landrith was talking about.

Mr. Isaacson responded to questions concerning injectable drugs, the potential compromise, preparation of the sunrise application and inaccuracy of the word chelation.

Dr. Annette Hanian, Arizona Optometric Association, spoke in favor of the sunrise application. She indicated that she is in private optometric practice and cited her background. She clarified that the intention has never been to inject into the eye, which is outside the scope of optometry. It is about eyelid subcutaneous intramuscular as far as epinephrine auto-injectors.

John Mangum, Arizona Ophthalmological Society, spoke against the sunrise application. He contended that no studies exist to facilitate the expansion of practice being requested. He suggested that rather than vote on a sunrise report that appears to be a substitute motion, a sunrise report should be made available that outlines exactly what is being requested by the Arizona Optometric Association so responses can be prepared by the Arizona Ophthalmological Society and the Members can make informed, knowledgeable decisions. He added that 12,000 hours of clinical experience involved in treating patients is not provided in optometry.

Representative Boyer stated he would like to participate in any stakeholder meetings.

Discussion followed among the Members concerning whether it is appropriate to alter the original sunset application.

In response to a question, Dr. Potter returned to the podium. She said at Midwestern University and nationwide, general pharmacology courses focus on drugs used in all areas of the body. Those are drugs optometrists will never use, but in order to prescribe any drug, it is necessary to understand all drugs because of potential interactions and side effects. The only pain medication besides those over the counter is Vicodin, which is hydrocodone with acetaminophen, which the FDA is going to make a Schedule II drug. That was not part of the sunrise application, but it should be considered. Oral steroids are used when topical steroids, the normal course of treatment, are not enough. Steroids can be life-saving in the short-term but very dangerous in the long-term; this would be short-term use where serious consequences rarely occur.

Discussion and Recommendations by the Committee of Reference

After further discussion among the Members, Co-Chairman Carter announced that no formal action will be taken. She personally committed to a stakeholder process that includes Representative Boyer. Based on the results of the stakeholder meeting, she will communicate to the Members whether another meeting is necessary.

AT 1:08 A.M. THE MEETING RECESSED UNTIL 1:45 P.M.

THE MEETING RECONVENED AT 1:55 P.M. WITH ALL MEMBERS PRESENT EXCEPT SENATOR LOPEZ.

ARIZONA STATE BOARD OF PHYSICAL THERAPY

Presentation by the Office of the Auditor General

Jeremy Weber, Attorney General’s Office, gave a powerpoint presentation on the Performance Audit and Sunset Review of the Arizona State Board of Physical Therapy (Attachment 5).

Response by the Arizona State Board of Physical Therapy

Charles Brown, Executive Director, Arizona State Board of Physical Therapy, related that there was one finding in the audit report, which was the timeliness in which the Arizona State Board of Physical Therapy (Physical Therapy Board) resolves complaints. The Physical Therapy Board now has a full-time investigator and the complaint database has been and continues to be updated for tracking purposes of the investigator’s time. There will be more data on where a process within the investigation slows down. Also, the Physical Therapy Board maintained its contract with the Attorney General’s Office and increased funding to ensure a representative is designated to the Physical Therapy Board to resolve formal hearings throughout the process.

Co-Chairman Carter pointed out that many people signed up to speak about dry needling, which she would like to address separately in a stakeholder meeting.

Co-Chairman Barto suggested that the Members discuss both issues because any continuation considerations should take into account what the Physical Therapy Board is doing in totality. She asked for the Physical Therapy Board’s input on dry needling.

Mr. Brown indicated that he and staff are willing to participate in a stakeholder process or policy discussion. The Physical Therapy Board received complaints from members of the public regarding physical therapists advertising and offering a treatment called dry needling. He explained the Physical Therapy Board’s process for handling the complaints that involved an investigation, discussions, stakeholder meetings in Phoenix, Flagstaff and Tucson and a meeting involving physical therapists and members of the Acupuncture Board. After a review of material from those meetings, the Physical Therapy Board took on the issue of whether dry needling falls within the statutory definition of the practice of physical therapy and determined that it does. The Physical Therapy Board will discuss whether this technique should require mandatory education in the January 2014 and possibly future meetings.

Discussion followed about separating the issues. Co-Chairman Carter indicated that discussion will take place on dry needling.

In response to questions, Mr. Brown related that the complaints were from a public organization that he cannot disclose because of confidentiality. He does not know the number of physical therapists who practice dry needling in Arizona. Some schools teach dry needling and some do not. It is covered within the practice analysis the national testing organization goes through; however, its use has not grown to the level where it is on the test. Continuing education to further general education is available on all the different techniques anywhere from 16 hours to over 100 hours, but it is up to the physical therapist to continue that education.

Mr. Brown related that the Physical Therapy Board did not look at whether dry needling is acupuncture. Legally, the Physical Therapy Board cannot determine if it is something covered by another statute. As with many scopes of practice, there is some interlinking, but in going through these processes, the Physical Therapy Board must adhere to legal advice from the Attorney General’s Office.

Senator Yee requested data from other states on how physical therapists practice dry needling and the education standards. Mr. Brown replied that nine states have specific information on education or training. He agreed to provide the information to the Members, noting that it is also on the Physical Therapy Board’s website.

Public Testimony

Barry Aarons, Lobbyist, Arizona Association of Chiropractic, stated that dry needling and acupuncture is an invasive practice that involves inserting a needle to illicit a response. The definition of manual therapy techniques in the physical therapy statute specifically say “a broad group of passive interventions,” so he is concerned to hear the Physical Therapy Board will allow this invasive procedure until it determines if more education is needed. The chiropractic community believes additional education is necessary in order to perform techniques that are not within their scope of practice.

Kelly Hsu, representing self, stated she is a licensed physician whose scope of practice is in physical medicine and rehabilitation but she is also a licensed acupuncturist. Dry needling and acupuncture is a stainless needle inserted into the flesh into subcutaneous tissue that creates a neurophysiological response from the patient. It is nothing to sneeze about because something can go wrong; documentation throughout the country indicates that dry needling and acupuncture have caused serious issues.

Marissa Polen, representing self, related that she paid cash for acupuncture treatments until she found that her health insurance company will pay if it is done by a physical therapist. It became clear that the physical therapist should not be handling needles when he offered to stick the needles through her clothes. The treatment made her condition worse instead of better. Through research she found that California, Hawaii and Florida have had to specifically protect the public from receiving needling from physical therapists. Research shows that with increased training there is a reduction in negative side effects and risk. When she found out that the Physical Therapy Board is allowing this treatment with no training, she was concerned about the lack of concern for public safety so she did not complain. The purpose of minimal hours of needle handling training, licensure and regulation is to protect the public.

Co-Chairman Barto noted that acupuncture needles given to the Committee are available at the analysts’ table.

Lloyd Wright, representing self, indicated that he is a licensed acupuncturist with over 28 years of experience. He expressed concern about the Physical Therapy Board’s vote to allow physical therapists in Arizona to perform invasive needling on patients even though the scope of practice governing physical therapists does not allow for such an invasive procedure and the lack of minimum education, training or oversight standards to ensure public safety. Furthermore, the Physical Therapy Board has failed to defer to the normal legislative process for expanding the physical therapy scope of practice through a sunrise application process. He added that he is willing to work with stakeholders in the future to find an appropriate resolution.

Lisa Akers, President, Arizona State Board of Physical Therapy, in response to questions, related that she does not know how many board members perform dry needling but she does not. Physical therapists perform a number of techniques that require continuing training beyond their initial formal education. The Physical Therapy Board will continue the conversation on how many hours of education are needed in the December 17, 2013 meeting.

In response to a question, Ms. Akers indicated that if the patient had complained to the Physical Therapy Board about the physical therapist who wanted to perform acupuncture through the patient’s clothes, the Physical Therapy Board would have had to find out if the physical therapist has the training to perform acupuncture; if not, the person would have to be disciplined.

Discussion and Recommendations by the Committee of Reference

Representative Meyer stated he would like to see recommendations from the Physical Therapy Board on training requirements and how to verify that the training is appropriate. He questioned whether people performing this technique should be grandfathered or stopped from using it until a decision is made.

Co-Chairman Carter said she wants to give this issue the appropriate time and attention. The sunrise process is set in statute and the deadline for application has passed so the issue of dry needling could be addressed in a bill separate from continuation of the Board.

Senator Ward expressed concern that the Board is currently allowing this to be done.

Senator Barto moved that the Senate Health and Human Services and House of Representatives Health Committee of Reference recommend to the full Legislature that the Arizona State Board of Physical Therapy be continued for five years until July 1, 2019 and authorize staff to draft conforming legislation and direct the Legislature to conduct a more full process regarding dry needling in the next legislative session.

Representative Brophy McGee made a substitute motion that the Senate Health and Human Services and House of Representatives Health Committee of Reference recommend to the full Legislature that the Arizona State Board of Physical Therapy be continued for 10 years until July 1, 2024 and authorize staff to draft conforming legislation and direct the Legislature to conduct a more full process regarding dry needling in the next legislative session. The motion carried by a roll call vote of 5-4-0-1 (Attachment 6).

ARIZONA IN-HOME CARE INDUSTRY

Presentation by Legislative Staff

Ingrid Garvey, Majority Research Analyst, related that in 2007, SB1605: in-home personal care services agencies, which required agencies that provide in-home care services to have a license issued by the Arizona Department of Health Services (ADHS), was introduced and passed the Senate; it was ultimately used as a strike-everything amendment in the House on another subject matter. In 2007, HB2587: in-home care providers study committee, created the In-Home Care Providers Study Committee, which met and adopted several recommendations. In 2010, a sunrise application was filed by the Arizona Non-Medical Home Care Licensure Coalition. The application was evaluated by the Committee of Reference (COR), which failed to recommend that legislation be drafted for consideration by the entire body.

Ms. Garvey said in March 2011, the Attorney General formed the 31-member Task Force against Senior Abuse (TASA), composed of community, business and government leaders. TASA is committed to identifying and advocating for the needs and concerns of senior citizens. The members work together to heighten public awareness of senior and elder abuse, initiate efforts of prevention and prosecute cases in which seniors are victimized. This year, the Arizona In-Home Care Industry filed a sunrise application seeking regulatory oversight of the industry which, according to the applicant, has been done in 29 other states. The application is seeking mandatory licensure for all business providers of in-home care and supportive services through the ADHS.

Response by the Arizona In-Home Care Industry

Stuart Goodman, Home Care Association of America - Arizona Chapter; Arizona Non-Medical Care Association, in support of the sunrise application, conveyed the following common values shared by people who will be speaking:

Oversight and accountability for the industry which works with one of the most vulnerable populations in the community
Limited regulatory frameworks and footprints so the industry is not overburdened and accessibility is maintained while providing accountability and oversight
Public safety for consumers
A self-sufficient regulatory framework that does not rely on the General Fund

Mr. Goodman stated that the aged population is increasing in Arizona and by 2020 will represent 26 percent of the state’s population. Regulation will help provide increased professionalism for this industry as well as oversight, accountability and greater public trust. He asked the Members to consider approving the sunrise application.

Public Testimony

Tom Chenal, Chief Counsel, Public Advocacy and Civil Rights Division, Attorney General’s Office; Chairman, TASA, spoke in support of the sunrise application. He stated that by 2020 Arizona will have an age 60 plus population that will make up one-fourth of the state’s population; 85 plus, which is the fastest-growing age group, will grow at a rate of 141 percent by 2020. There is a continuing need for care and caregivers, which are difficult to find. Non-medical caregivers are an unregulated industry and many people want to be cared for in their home. He talked about cases involving adult abuse, financial exploitation of a vulnerable elderly adult and theft by home caregivers who later were found to have criminal backgrounds. He opined that oversight of the in-home care work force will protect vulnerable adults. Non-medical health care companies are not licensed nor are individuals found on Craigslist. Law enforcement can only take action after a victim has been victimized in his/her home.

Representative Brophy McGee asked about the amount of regulation in other states. Mr. Chenal related that he has statistics in the sunrise report on how 20-plus states regulate the non-medical home care industry; it is mostly licensing and background checks. In Arizona there is no regulation or recourse other than law enforcement which, with limitations, cannot handle every case. The other option is private litigation, which is not a good alternative for vulnerable elderly people.

Carl Erickson, President, AARP Arizona, in support of the sunrise application, stated that AARP members, who vary in age from 50 to 100, often have to hire someone to care for them or someone else for certain needs after a health issue, and people want to remain in their home. He indicated that he is only looking for disclosure, such as background checks and competency level for caregivers. Affordability is also a concern; the industry should not be priced out of existence. Additionally, the disclosure statement given to the consumer should provide information on where to go for remedies if something goes wrong. In response to a question, he related that AARP supports family caregiving, but it can go on for a long time, and sometimes it is necessary to hire someone to give a family member a break.

Senator Ward remarked that if something is stolen from a home, the police can be called; it is not necessary to involve a middleman agency. Simply having a license does not mean someone will not steal. Mr. Erickson replied that if a license with oversight and a disclosure statement are required, the consumer will know who is in the home and the person providing the care will know they are being watched more closely.

Senator Ward remarked that the requested oversight, etc., could raise the price of in-home care. Representative Brophy McGee remarked that if people want their loved ones to be safe as opposed to hiring a caregiver from Craigslist or a website, etc., another option would be to place them somewhere safer like an institution, which would result in more cost to the state, less comfort for the person hiring the caregiver and discomfit the older person.

Discussion continued among the Members about whether more regulation is needed for the industry.

Bob Roth, Managing Partner, Home Care Association of America – Arizona Chapter; Arizona Non-Medical Home Care Association; Owner, Cypress HomeCare Solutions, spoke in favor of the sunrise application. He stated that he has been working with the Attorney General’s Office and the ADHS to develop a regulatory model for the in-home care industry that is not overly burdensome to the industry but will provide consumer protection for one of the most vulnerable populations in the state. As the older population grows, the need for these types of services will increase, and with this growth, there is an urgency to create accountability. More and more families choose to keep their loved ones at home, placing further demands on services, thus requiring oversight.

He advised that there are two basic models for delivery of care. One is through home care agencies. With this model, W-2 employees are required to have background checks and fingerprint clearance cards. Agencies are required to carry insurance to protect the consumer, which includes workers' compensation, professional liability, and theft bonds. The other model is a caregiver registry, which sends out 1099 contracted workers, and has none of those safeguards in place. Consumers often cannot tell the difference between the two so the goal of oversight is to better inform consumers through disclosure where none currently exists. He provided the following information:

· There are 28 states with licensure; 22 with no licensure.

· A background check for 50 states costs less than $50. Cardiopulmonary resuscitation (CPR) and first aid are requirements of the agencies and it is important to carry the proper insurances.

· Risk can be minimized up front by keeping “bad actors” out. Providers provide care not only to the community privately, but also to the Arizona Long Term Care System (ALTCS) population and Developmentally Disabled (DD), which require minimal standards that the private pay industry should have.

· There is no intent to regulate family caregivers or neighbors.

· The goal of home care agencies is to provide respite for family members. With the advent of technology and travel, people do not have relatives living in the same neighborhood so agencies provide surrogate sons and daughters to help people age in place.

In response to questions, Mr. Roth indicated that one of the goals in creating licensure is to educate consumers about challenges, etc., one of which is that there is no recourse for “bad actors”. Someone can be released from prison and immediately open a non-medical home care agency. With regulation and minimum standards, that person could be put out of business and potentially prosecuted. He said he does not have statistics about how regulation has worked in other states.

Co-Chairman Barto surmised that over the years, there seemed to be a broad consensus that caregivers should be trained and minimum standards are needed, but the cost of implementation is always an issue. She asked if regulation raises the cost so it may become more cost-prohibitive for families to obtain respite care. Mr. Roth agreed there will be a cost to regulation but opined that everyone owes it to the elderly and communities to safeguard and protect them. He advised that an additional cost not mentioned previously is training.

At Representative Brophy McGee’s request, Mr. Roth explained the hiring process at his agency, which involves three interviews, three reference checks, 50-state background checks and pre-employment drug screening. The caregiver must be CPR-certified and go through caregiver training if they do not have it. The agency looks for people with a heart and compassion. The salary ranges from $18 to $26 per hour. A care coordinator visits with the client and his/her family and develops a plan of care to make sure the client is safe and well cared for in the home, then the care coordinator and staff find the best fit for the client. Someone who cannot afford the services is referred to an agency that may charge less, the Area Agency on Aging or not-for-profit agencies in the community.

Mr. Chenal indicated that licensure is “putting the cart before the horse”; he is asking for a discussion on minimum requirements to provide more oversight for the health and safety of this vulnerable population.

Colby Bower, Chief Legislative Liaison, Arizona Department of Health Services (ADHS), neutral on the sunrise application, noted that it contemplates ADHS providing the licensing oversight. Using the medical home care model, it is estimated that ADHS would need four surveyors for non-medical home care, based on 500 licensees, along with administrative support to process applications, etc. Each employee’s cost is estimated at about $100,000 for salary, travel, employee-related expenses and indirect costs. Typically, ADHS would look for
General Fund support for startup costs, but if the Legislature and Governor decide it is not feasible, ADHS would try to recoup those costs through licensure fees by having a higher initial application fee and a lower renewal application fee. A license would be about $1,000 annually, in addition to the initial license, depending on what the final regulation framework looks like.

Debbie Thomas, Registered Nurse; Paramedic Training Coordinator, Phoenix Fire Department, said about seven years ago, she became involved with issues with caregivers while responding to calls from care facilities where patients were receiving bad care, so she started her own home care project. Over the last year, there have been more encounters in private homes where patients are sometimes found in deplorable conditions. She supports regulation of this industry because citizens are human beings who deserve to be treated with dignity and respect and have quality care. In response to a question, she surmised that legislation and regulation will provide higher quality employees in homes to provide care the patients need, financially and physically, and there will be recourse if something goes amiss.

Senator Ward pointed out that Adult Protective Services (APS) can be called if there is a concern about an elderly person, and law enforcement can be contacted if a crime is committed.

In response to a question, Ms. Thomas indicated that issues were initially found in licensed facilities so a program was started to work with them, but she has noticed a marked increase in calls from private homes. APS is not adequate because she never receives feedback when she makes a report and does not know if the situation is addressed. Senator Ward commented that if there is an issue with APS, it should be looked into; she does not believe APS is required to follow up with first responders, etc.

Discussion and Recommendations by the Committee of Reference

Representative Brophy McGee remarked that she has a neighbor whose husband was very disabled. When he fell, for example, she called 911 for help, which is an expensive use of public resources that could be abated by more eyes on who is entering this industry of caring for vulnerable people with no screening. She surmised that more taxpayer money is being spent through higher taxes and removing firefighters from other calls, with this system totally unregulated.

Representative Steele commented on the importance of taking care of this most vulnerable population.

In response to a question, Mr. Roth advised that the salary for ALTCS and DD providers is about $14.17 per hour.

Co-Chairman Barto moved that the Senate Health and Human Services and House of Representatives Health Committee of Reference recommend that a bill be drafted for consideration by the full Legislature containing the items submitted in the sunrise application received from the Arizona In-Home Care Industry. The motion carried by a roll call vote of 6-2-0-2
(Attachment 7).

ARIZONA ASSOCIATION OF CHIROPRACTIC

Presentation by Legislative Staff

Ingrid Garvey, Majority Research Analyst, stated that the Arizona Association of Chiropractic filed a sunrise application seeking an increase in the scope of practice to allow for the prescribing of prescription strength ibuprofen and naproxen along with three muscle relaxers. The Association then filed a supplemental document to the sunrise application asking for the consideration of enactment of a pilot program to allow the Board to issue a limited number of advanced practice certificates to dispense, prescribe and administer non-steroidal anti-inflammatory agents, muscle relaxers and analgesics. The supplemental document was e-mailed to the Members on December 5, 2013.

Response by the Arizona Association of Chiropractic

Barry Aarons, Lobbyist, Arizona Association of Chiropractic, spoke in favor of the sunrise application. He stated that the purpose is to enable chiropractors to enhance care for patients, provide a potential cost savings for patients and insurance companies by allowing a very limited prescriptive opportunity without having to refer, allow treatment with other additional health care attendants when it is appropriate and provide more continuity of care. He said Representative Meyer raised the idea of a pilot program at a stakeholder meeting, so the application is not being altered except the form; rather than a statutory change, the Association is asking that if the Committee votes to move ahead with legislation, a pilot program will be created.

He noted that in 2004, a pilot program was established to allow certified nursing assistants to administer medication, which would be a good place to start in drafting legislation. He made the following recommendations:

In order to be more accountable, set the specific amount of education at 75 hours, although the number can be changed if it is demonstrated that more or less is appropriate.
Inclusion of four specific drugs in statute or session law so there is no question about what is being used: prescription ibuprofen, naproxen, methocarbamol and cyclobenzaprine.
Limit the number of doctors to 20.
Assign or contract with an MD or DO to provide supervised type of prefecture to chiropractors by including a requirement for a team management approach.
If the chiropractor completes the hours and prefecture, an examination would be taken that can be developed by a professional organization hired by the Chiropractic Board of Examiners or another board chosen by the Legislature.
The length of the pilot program could be a minimum of five to seven years.

Mr. Aarons stated that some statutory conformity will be necessary in the MD statute,
Arizona Revised Statutes (A.R.S.) § 32-1491, and Chapter 18. Some chiropractors oppose this so it would be permissive. He will make a formal presentation to the Arizona State Chiropractic Board of Examiners (Chiropractic Board) on Wednesday, December 18, 2013.

In response to questions, Mr. Aarons indicated companies have been recommended by the state and national pharmacy boards that he believes could be contracted with whatever board manages the program to develop a test that would be indigenous to this pilot program; he does not know what it will cost. He suggested that the Chiropractic Board is competent to manage this pilot program.

Public Testimony

Pamela Paschal, Interim Executive Director, Arizona State Board of Chiropractic Examiners, neutral on the sunrise application, indicated that she briefly reviewed the plan the previous evening and Mr. Aarons will make a presentation to the Chiropractic Board where the members will have an opportunity to comment. From past history with the Chiropractic Board, there has been no opposition to such a program. The only question as far as enforcing and enacting it would be funding. The Chiropractic Board is facing a severely declining fund and it is short-staffed so funding would have to be requested to administer the pilot program.

Dr. Gregory Katsaros, representing self, spoke in favor of the sunrise application. He stated that he is a doctor of chiropractic and a member of the Chiropractic Board, but he is not representing the Chiropractic Board. He discussed the benefits of the pilot program and the process used to determine the amount of education needed to administer the four medications. He submitted that by having extra education in concert with the information gleaned from the stakeholder meeting, the sunrise application should be accepted and placed into a bill with any changes deemed necessary. This is a patient-centered bill for better continuity of care rather than having to refer patients, saving costs to patients overall.

Co-Chairman Barto assumed the Chair.

Dr. Katsaros stated that the Board often contracts with MDs and DOs to obtain feedback and input if there are any issues beyond the scope of the Chiropractic Board.

Co-Chairman Carter resumed the Chair.

Amanda Weaver, Executive Director, Arizona Osteopathic Medical Association, opposed the sunrise application. She stated that the need for this prescriptive authority has not been addressed in the sunrise application. If there are adverse side effects, the primary care physician will have to see the patient anyway, and the condition could end up being more serious and more costly, which creates more of a burden on DOs and MDs. She acknowledged that there is a physician shortage, but submitted that there are other avenues of receiving these medications other than physicians’ offices. More importantly, over-the-counter anti-inflammatory medications work well so there does not seem to be a need for this prescriptive authority.

Ms. Weaver pointed out that chiropractors face malpractice whether they recommend an over-the-counter medication or prescribe a prescription if there are adverse side effects. She said
Mr. Aarons is aware that she has a concern about cyclobenzaprine, contending that 75 hours of education is not adequate. She read excerpts from a letter from Dr. Patrick Hogan, a board-certified pain management specialist who has chiropractors in his practice and is married to a chiropractor (Attachment 8). She noted that the Board of Pharmacy develops test questions within the states.

Kelly Ridgway, Chief Executive Officer, Arizona Pharmacy Association, stated that she cannot speak on behalf of the Board of Pharmacy; however, she has looked into how the test questions are formulated. Each state formulates and submits questions to the National Associations of Boards of Pharmacy to be vetted and tested. The test questions are developed by pharmacists who serve on the Board of Pharmacy. The Board of Pharmacy may be willing to take on that challenge or health professionals or associations in the state may want to form a committee to help develop test questions or give guidance, but she is willing to help in those discussions. She added that she just saw the pilot program language so she cannot speak to what the Association can do at this time.

Mr. Aarons remarked that nothing Ms. Weaver said should prevent the COR from moving forward with a pilot program. If a pilot program is supervised correctly by quality DOs and MDs, adverse conditions should be minimized. Also, the appropriate malpractice insurance rates will be paid to make sure the public is protected from any malpractice that could occur.
Dr. Hogan’s letter contains one person’s opinion. The intent is not to change the entire nature of oversight of education in chiropractic; he is suggesting additional education, and if 75 hours is not enough, another number can be found.

Discussion and Recommendations by the Committee of Reference

Co-Chairman Barto moved that the Senate Health and Human Services and House of Representatives Health Committee of Reference recommend a bill be drafted for consideration by the full Legislature containing the items submitted in the supplemental document to the sunrise application received from the Arizona Association of Chiropractic entitled Chiropractic Pharmaceutical Pilot Program. The motion failed by a roll call vote of 3-4-0-3 (Attachment 9).