Advocacy never stops. Those seeking to eliminate physician-led care are always working, always thinking, always planning, which requires our national and state advocacy efforts to outpace these dangerous efforts.
Texas may appear to some to have a slower advocacy-related schedule because the legislature only meets for six months every two years to consider legislation. If a bill dies in one session, it will be a long wait before that legislative effort can be tried again. It is incorrect to think that this means the ground does not shift during the roughly 18 months when the legislature is not in session. Regulatory activities continue regardless of our legislative session. Interim committees, hearings, and campaign events are held. Each of these represents an opportunity for policy to be interpreted, shifted, or outright turned upside down.
“The point here is simple – advocacy is not just about fundraising for elected officials. It is also about putting in the time and work to serve on public panels, boards, and committees. Anesthesiologists make a difference by staying involved in the welfare of our patients both inside and outside of the OR.”
A prime example of policy manipulation that could have negatively impacted anesthesiology occurred this past spring. The Texas Association of Nurse Anesthetists (TxANA) appeared to attempt to use the Texas Medical Disclosure Panel (Panel), a statutorily created regulatory body, to push their scope expansion agenda.
In Texas, decisions regarding risks and hazards related to medical care and surgical procedures that must be disclosed by physicians to their patients or persons authorized to consent for their patients are made by the Panel. The Panel, established by the 65th Legislature in 1977, is appointed by the Executive Commissioner of the Health and Human Services Commission and is composed of nine members: three licensed to practice law in Texas and six licensed to practice medicine.
Members of the Texas Society of Anesthesiologists (TSA) have a long history of serving on this panel to ensure that a board-certified, actively practicing anesthesiologist is present and heard when these important decisions are made and appropriate consent forms are developed for patients. I have served on this panel for three years, Dr. Sherif Zaafran served on the panel for five years prior to this, and Dr. Patrick Giam (ASA Speaker of the House of Delegates) served on the panel for five years prior to that.
The past few quarterly meetings have included discussions, recommendations, and revisions to the anesthesia consent and disclosure form to make it easier for patients to understand. When the discussions began, as the only anesthesiologist on the panel, I was assigned to sit on the working group recommending the specific language changes to the broader committee. TxANA has frequently submitted unsolicited recommendations to the panel through a nonphysician member of the panel, and this current revision process was no exception.
On multiple occasions during the current revision process, TxANA put forth language that would place physicians with delegation and supervision authority in the same section and/or in the same category as nurse anesthetists on the form. These attempts were regularly countered by members of the panel by noting the obfuscation this would present to patients in a state where a physician is required to be responsible for consent.
Prior to the meeting of the full Panel in May, the Panel formally requested comments from relevant stakeholders on the proposed changes to the anesthesia consent form. TSA submitted comments along with the Texas Academy of Anesthesiologist Assistants and the Texas Medical Board. Notably missing from the formal written comments were any made by TxANA.
An inadvertently forwarded e-mail chain seen a few weeks prior to the meeting suggested that TxANA intended to misrepresent a subsequently retracted letter from the attorney general's (AG's) office on scope of practice. The letter, prematurely sent by an aide, had been rescinded because it inaccurately stated the AG's opinion on supervision of nurse anesthetists in Texas. The AG instructed his chief of staff to retract the letter with clarification regarding the need to adhere to state and federal statutes for delegation and supervision.
It appeared that TxANA intended to submit the retracted letter to the Panel without revealing that it had not only been retracted but also corrected in a subsequent clarifying letter from the AG. Such a selective and misleading use of information may have swayed members of the Panel with a false argument regarding who is responsible for a patient's anesthetic in the state of Texas. Fortunately, forewarning of this likely tact allowed the TSA governmental affairs staff to ensure copies of the correction letter were printed and brought to the meeting to hand out if necessary.
At the meeting, TSA President Crystal Wright, MD, FASA, provided live testimony supporting the written comments submitted by TSA, and former TSA President David Bryant, MD, was available in person to provide testimony about the AG letter should it come up.
As the meeting unfolded, all written comments submitted by stakeholders were summarized and discussed by the panelists. Comments submitted by the Texas Medical Board were particularly salient to the final outcome, as they spoke very specifically to the delegation and supervision requirements in state and federal law. Discussion of the medical board comments by the Panel revealed a very strong preference by the panelists to avoid any intrusion into the politics of scope of practice in the state of Texas. The chair of the Panel summarized this sentiment by stating it was not the role of the Panel to weigh in on scope of practice issues and that the Panel would rebuff efforts by stakeholders to use the consent form for such a purpose.
After this point was clearly made, a TxANA representative was called to publicly testify. While we will never know what he intended for his original comments, his options were limited after this rebuke from the Panel. He still made an unpersuasive attempt to convince the Panel to list the name of the nurse anesthetist in the same section as the physician, but the panelists disagreed that this would serve the best interest of Texas patients.
It is impossible to be certain whether the TxANA representative intended to bring up the inaccurate AG letter or if he changed his testimony based on the statement from the chair of the Panel following the written Texas Medical Board comments. What we do know is that the TSA team did their due diligence and came to the meeting fully prepared to handle every contingency that those seeking to eliminate physician-led care might have used to dissemble on an issue very relevant to both Texas anesthesiologists and the patients they care for.
Without laying the historical groundwork of ensuring an anesthesiologist sit on the Texas Medical Disclosure Panel, the TSA would not have realized the risk to the profession that existed in a seemingly uncontroversial government body. Furthermore, the TSA would not have been able to prepare in advance rebuttals to potentially misleading information while at the same time providing germane and helpful comments to the uncontroversial elements of the consent form. If the TSA did not do the hard work of providing time and expertise to government entities and maintaining relationships with our elected officials, including the AG, the letter from last session may have never been corrected. If the TSA did not have dedicated leaders and advocates who take time out of their busy schedules to prioritize advocating for their profession, we may not have had anesthesiologist representation at the public testimony portion of the Panel meeting.
The point here is simple – advocacy is not just about fundraising for elected officials. It is also about putting in the time and work to serve on public panels, boards, and committees. Anesthesiologists make a difference by staying involved in the welfare of our patients both inside and outside of the OR. The “other side” is constantly working on creative ways to push their agenda, so we must ensure we are always vigilant and two steps ahead to defend patient safety and the specialty.