Nonphysicians bypass legislatures, use own boards to expand scope

A growing number of allied health professions seeking scope-of-practice expansion are going through their regulatory boards instead of state legislatures, physician leaders say.

Executives at national groups such as the American Optometric Assn., state groups such as the Texas Podiatric Medical Assn. and other organizations say their boards are amending regulations within their authority and that their professions are not putting patients at risk. But physicians view the actions as illegal and a threat to patient safety.

"To get a state board to issue an advisory opinion is a quick way to get [scope changes], and the only way to challenge it is in court, which is expensive," said John B. Neeld Jr., MD, past president of the American Society of Anesthesiologists. "If they get a friendly state board, they're home free. It's a big train that's left the station, and it's gathering momentum."

Oklahoma gained national attention in 2004 when the Oklahoma Board of Examiners in Optometry adopted rules permitting optometrists to perform surgery with a scalpel, a move the state legislature backed with legislation later that year.

The Texas Medical Assn. is in legal battles with the state's chiropractors and podiatrists, whose boards have made regulatory changes the TMA considers scope expansions. At least seven other state medical associations are seeing allied health professions pursue scope changes through their boards. Podiatrists, optometrists and certified registered nurse anesthetists are among the most active groups, the medical society leaders said.

William A. Hazel Jr., MD, a member of the American Medical Association Board of Trustees, said allied professionals are overstepping their regulatory authority as they include aspects of medicine into their scope. Those in the allied professions may consider themselves competent to make diagnoses, prescribe drugs or perform invasive procedures, he said. But without a medical degree, they do not have the expertise, said Dr. Hazel.

"The problem with limited license boards expanding their scope is that the hardest thing to know is what you don't know," Dr. Hazel said. "As boards expand the scope of their licensees, they'll run into more things that have been done only by physicians before."

Allied health professionals making regulatory changes say they are not dodging the lengthy legislative process or the unpredictability of legislators' votes. They say their boards are acting within their legislative mandate to regulate their licensees, which includes interpreting their governing statutes and amending them.

Jason Ray, an attorney for the Texas Chiropractic Assn., which the Texas Medical Assn. has sued, said legislatures commonly give regulatory bodies authority to define parameters in which they have responsibility. "Every regulatory agency that licenses a profession to some extent defines what that scope is going to be."

Most allied health professionals are still more likely to go to state legislatures seeking scope-of-practice expansions. This year, at least 17 nonphysician associations are expected to approach legislatures with bills in 30 states. But the regulatory route is becoming increasingly popular.

In Ohio, Todd Baker, executive director of the Ohio Ophthalmological Society, said optometrists there are using the regulatory process to expand on prescribing legislation passed in 1992. Using this law, he said, the optometric board has been adding drugs to its formulary, such as antivirals for treating shingles involving the eye. "This is the optometric community adding scope by adding new drugs," he said.

The executive director of the Ohio Optometric Assn. said the group does not view it as an expansion.

Elsewhere:

• In New York, nurse anesthetists have asked regulators to create a category of nurse anesthetists that would practice without doctor supervision.
• In Idaho, the Idaho Medical Assn. and Idaho Society of Ophthalmology, along with the medical board, approached the Idaho State Board of Optometry about its decision to include certain eyelid procedures within optometrists' scope.
• In Massachusetts, the state podiatric board, through a regulatory hearing, defined the scope of podiatry to include the ankle and amputation. That occurred after legislative attempts failed. The Massachusetts Medical Society has not decided whether it will pursue legal action.

Meanwhile, the Texas Medical Assn. is appealing an Austin district court decision upholding the podiatric board's action to define the profession's scope to include the ankle. The TMA's case against the chiropractic board for allowing needle electromyography and spinal manipulation under anesthesia is still in pretrial proceedings.

Mark J. Hanna, legal counsel for the Texas Podiatric Medical Assn., and Ray, for the Texas chiropractic board, said their boards were not expanding either profession's scope.