NO. 34.  AN ACT RELATING TO CERTIFYING ANESTHESIOLOGIST ASSISTANTS.

(S.144)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  26 V.S.A. chapter 29 is added to read:

CHAPTER 29.  ANESTHESIOLOGIST ASSISTANTS

§ 1651.  DEFINITIONS

As used in this chapter:

(1)  “Anesthesiologist” means a person licensed to practice medicine or osteopathy under chapter 23 or 33 of this title and who either has completed a residency in anesthesiology approved by the American Board of Anesthesiology or the American Osteopathic Board of Anesthesiology or their predecessors or successors or is credentialed by a hospital to practice anesthesiology and engages in the practice of anesthesiology at that hospital full-time.

(2)  “Anesthesiologist assistant” means a person certified by the state of Vermont under this chapter who is qualified by education, training, experience, and personal character to provide medical services under the direction and supervision of an anesthesiologist.

(3)  “Board” means the state board of medical practice established under chapter 23 of this title.

(4)  “Contract” means a legally binding written agreement containing the terms of employment of an anesthesiologist assistant.

(5)  “Disciplinary action” means any action taken against a certified anesthesiologist assistant or an applicant by the board or an appeal of that action when that action suspends, revokes, limits, or conditions certification in any way, or when it results in a reprimand of the person.

(6)  “NCCAA” means the National Commission for Certification of Anesthesiologist Assistants, or its successor, as recognized by the board.

(7)  “Protocol” means a detailed description of the duties and scope of practice delegated by an anesthesiologist to an anesthesiologist assistant.

(8)  “Supervision” means the direction and review by the supervising physician, as determined to be appropriate by the board, of the medical services provided by the anesthesiologist assistant.  At a minimum, supervision shall mean that an anesthesiologist is readily available at the facility for consultation and intervention.

§ 1652.  CERTIFICATION AND RULEMAKING

The board shall certify anesthesiologist assistants, and the commissioner of health shall adopt rules regarding the training, practice, supervision, qualification, scope of practice, places of practice, and protocols for anesthesiologist assistants, and patient notification and consent.

§ 1653.  APPLICATION

(a)  Applications for certification shall be accompanied by an application by the proposed supervising anesthesiologist that shall contain a statement that the anesthesiologist shall be responsible for all professional activities of the anesthesiologist assistant.

(b)  Applications for certification shall be accompanied by a protocol signed by the proposed supervising anesthesiologist and a copy of the anesthesiologist assistant employment contract.

(c)  The applicant must submit to the board any other information the board considers necessary to evaluate the applicant’s qualifications.

§ 1654.  ELIGIBILITY

To be eligible for certification as an anesthesiologist assistant, an applicant shall have:

(1)  obtained a master’s degree from a board-approved anesthesiologist assistant program at an institution of higher education accredited by the Committee on Allied Health Education and Accreditation, the Commission on Accreditation of Allied Health Education Programs, or their successor agencies, or graduated from a board-approved anesthesiologist assistant program at an institution of higher education accredited by the Committee on Allied Health Education and Accreditation or the Commission of Accreditation of Allied Health Education Programs, prior to January 1, 1984; and

(2)  satisfactorily completed the certification examination given by the NCCAA and be currently certified by the NCCAA.

§ 1655.  TEMPORARY CERTIFICATION

(a)  The board may issue a temporary certification to a person who applies for certification for the first time in this state and meets the educational requirements under subsection 1654 of this title.

(b)  Temporary certification may be issued only for the purpose of allowing an otherwise qualified applicant to practice as an anesthesiologist assistant until the applicant takes and passes the next NCCAA examination, and a determination is made of his or her qualifications to practice in this state.

(c)  Temporary certification shall be issued on payment of the specified fee for a fixed period of time to be determined by the board and shall only be renewed by the board if the applicant demonstrates proof of an exceptional cause.

§ 1656.  RENEWAL OF CERTIFICATION

(a)  Certifications shall be renewable every two years on payment of the required fee and submission of proof of current, active NCCAA certification.

(b)  A certification that has lapsed may be reinstated on payment of a renewal fee and a late renewal fee.  The applicant shall not be required to pay back renewal fees for the periods when certification was lapsed.  However, if such certification remains lapsed for a period of three years, the board may, after notice and an opportunity for hearing, require reexamination as a condition of renewal.

§ 1657.  SUPERVISION AND SCOPE OF PRACTICE

(a)  The number of anesthesiologist assistants permitted to practice under the direction and supervision of a physician shall be determined by the board after review of the system of care delivery in which the supervising anesthesiologist and anesthesiologist assistants propose to practice.  The authority of an anesthesiologist assistant to practice shall terminate immediately upon dissolution of the anesthesiologist assistant’s employment contract, and the supervising anesthesiologist shall immediately notify the board and the commissioner of the department of health of such termination.  The anesthesiologist assistant’s authority to practice shall not resume until he or she provides proof of another employment contract and protocol as approved under this chapter.

(b)  The anesthesiologist assistant’s scope of practice shall be limited to that delegated to the anesthesiologist assistant by the supervising anesthesiologist and for which the anesthesiologist assistant is qualified by education, training, and experience.  At no time shall the practice of the anesthesiologist assistant exceed the normal scope of the supervising anesthesiologist’s practice.

§ 1658.  UNPROFESSIONAL CONDUCT

(a)  The following conduct by a certified anesthesiologist assistant constitutes unprofessional conduct.  When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of certification:

(1)  fraudulent procuring or use of certification;

(2)  occupational advertising that is intended or has a tendency to deceive the public;

(3)  exercising undue influence on, or taking improper advantage of, a person using the anesthesiologist assistant’s services, or promoting the sale of professional goods or services in a manner that exploits a person for the financial gain of the anesthesiologist assistant or of a third party;

(4)  failing to comply with provisions of federal or state statutes or rules governing the profession;

(5)  conviction of a crime related to the profession or conviction of a felony, whether or not related to the practice of the profession;

(6)  conduct that evidences unfitness to practice in the profession;

(7)  making or filing false professional reports or records, impeding or obstructing the proper making or filing of professional reports or records, or failing to file the proper professional report or record;

(8)  practicing the profession when mentally or physically unfit to do so;

(9)  professional negligence;

(10)  accepting and performing responsibilities that the person knows or has reason to know that he or she is not competent to perform;

(11)  making any material misrepresentation in the practice of the profession, whether by commission or omission;

(12)  the act of holding one’s self out as, or permitting one’s self to be represented as, a licensed physician;

(13)  performing otherwise than at the direction and under the supervision of an anesthesiologist licensed by the board;

(14)  accepting the delegation of, or performing or offering to perform, a task or tasks beyond the person’s scope of practice as defined by the board;

(15)  administering, dispensing, or prescribing any controlled substance other than as authorized by law;

(16)  failing to comply with an order of the board or violating any term or condition of a certification restricted by the board;

(17)  delegating professional responsibilities to a person whom the certified professional knows, or has reason to know, is not qualified by training, experience, education, or licensing credentials to perform;

(18)  in the course of practice, gross failure to use and exercise on a particular occasion or the failure to use and exercise on repeated occasions that degree of care, skill, and proficiency which is commonly exercised by the ordinary skillful, careful, and prudent professional engaged in similar practice under the same or similar conditions, whether or not actual injury to a patient has occurred; or

(19)  revocation of certification to practice as an anesthesiologist assistant in another jurisdiction on one or more of the grounds specified in subdivisions (1)-(18) of this subsection.

(b)  A person aggrieved by a final order of the board may, within 30 days of the order, appeal that order to the Vermont supreme court on the basis of the record created before the board.

§ 1659.  DISPOSITION OF COMPLAINTS

(a)  Complaints and allegations of unprofessional conduct shall be processed in accordance with the rules of procedure of the board.

(b)  The board shall accept complaints from a member of the public, a physician, a hospital, an anesthesiologist assistant, a state or federal agency, or the attorney general.  The board shall initiate an investigation of an anesthesiologist assistant when a complaint is received or may act on its own initiative without having received a complaint.

(c)  After giving opportunity for hearing, the board shall take disciplinary action against an anesthesiologist assistant or applicant found guilty of unprofessional conduct.

(d)  The board may approve a negotiated agreement between the parties when it is in the best interest of the public health, safety, or welfare to do so. That agreement may include any of the following conditions or restrictions which may be in addition to, or in lieu of, suspension:

(1)  a requirement that the person submit to care or counseling;

(2)  a restriction that the person practice only under supervision of a named person or a person with specified credentials;

(3)  a requirement that the person participate in continuing education in order to overcome specified practical deficiencies;

(4)  a requirement that the scope of practice permitted be restricted to a specified extent.

(e)  Upon application, the board may modify the terms of an order under this section and, if certification has been revoked or suspended, order reinstatement on terms and conditions it deems proper.

§ 1660.  USE OF TITLE

Any person who is certified to practice as an anesthesiologist assistant in this state shall have the right to use the title “anesthesiologist assistant” and the abbreviation “A.A.”  No other person may assume that title or use that abbreviation, or any other words, letters, signs, or devices to indicate that the person using them is an anesthesiologist assistant.  An anesthesiologist assistant shall not so represent himself or herself unless there is currently in existence a valid contract between the anesthesiologist assistant and his or her employer or supervising anesthesiologist, and unless the protocol under which the anesthesiologist assistant’s duties are delegated is on file with, and has been approved by, the board.

§ 1661.  LEGAL LIABILITY

(a)  The supervising anesthesiologist delegating activities to an anesthesiologist assistant shall be legally liable for such activities of the anesthesiologist assistant, and the anesthesiologist assistant shall in this relationship be the anesthesiologist’s agent.

(b)  Nothing in this chapter shall be construed as prohibiting an anesthesiologist from delegating to an anesthesiologist assistant certain activities relating to medical care and treatment now being carried out by custom and usage when such activities are under the control of the anesthesiologist.  Nothing contained in this chapter shall be construed to apply to nurses acting pursuant to chapter 28 of this title.

§ 1662.  FEES

Applicants and persons regulated under this chapter shall pay the following fees:

(1)(A)(i)  Original application for certification                   $75.00;

(ii)  Each additional application                            $50.00;

(B)  The board shall use at least $10.00 of these fees to support the costs of the creation and maintenance of a Vermont practitioner recovery network which will monitor recovering chemically dependent licensees for the protection of the public.

(2)(A)(i)  Biennial renewal                                             $75.00;

(ii)  Each additional renewal                                 $50.00;

(B)  The board shall use at least $10.00 of these fees to support the costs of the creation and maintenance of a Vermont practitioner recovery network that will monitor recovering chemically dependent licensees for the protection of the public.  In addition to the fee, an applicant for certification renewal shall submit evidence in a manner acceptable to the board that he or she continues to meet the certification requirements of the NCCAA.

(3)  Transfer of certification                                           $15.00.

§ 1663.  NOTICE OF USE OF ANESTHESIOLOGIST ASSISTANTS

An anesthesiologist that utilizes the services of an anesthesiologist assistant shall post a notice to that effect in an appropriate place and include language in the patient consent form that the anesthesiologist uses an anesthesiologist assistant.

§ 1664.  PENALTY

(a)  A person who, not being certified, holds himself or herself out to the public as being certified under this chapter shall be liable for a fine of not more than $1,000.00.

(b)  In addition to the penalty provided in subsection (a) of this section, the attorney general or a state’s attorney may bring a civil action to restrain continuing violations of this section. 

Sec. 2.  26 V.S.A. § 1842(b)(11) is added to read:

(11)  Use of the services of an anesthesiologist assistant in a manner that is inconsistent with the provisions of chapter 29 of this title.

Sec. 3.  26 V.S.A. § 1354(a) is amended to read:

(a)  The board shall find that any one of the following, or any combination of the following, whether or not the conduct at issue was committed within or outside the state, constitutes unprofessional conduct:

* * *

(30)  conviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession;

(31)  use of the services of an anesthesiologist assistant by an anesthesiologist in a manner that is inconsistent with the provisions of chapter 29 of this title.

Sec. 4.  26 V.S.A. § 1311(3) is amended to read:

(3)  “License” means license to practice medicine and surgery in the state as defined in subchapter 3 of this chapter.  “Licensee” includes individuals licensed under this chapter and chapter 7 of this title and registrants and holders of certificates issued by the board.

Sec. 5.  26 V.S.A. § 1318(f) is amended to read:

(f)  For the purposes of this section, “disciplinary action” means action that suspends, revokes, limits or conditions a license licensure or certification in any way, and includes reprimands.

Sec. 6.  26 V.S.A. § 1351(e) is amended to read:

(e)  The commissioner of health may shall adopt, amend and repeal rules of the board which the commissioner determines necessary to carry out the provisions of this chapter and chapters 7, 29, and 31 of this title.

Sec. 7.  26 V.S.A. § 1352(a) is amended to read:

(a)  The commissioner of health shall issue annually a report to the secretary of human services and the secretary of the Vermont medical society which shall contain:

(1)  a separate record of the name, residence, college and date of graduation of each physician individual licensed or certified by the board;

(2)  a list of all physicians, physician’s assistants, podiatrists, and anesthesiologist assistants practicing in the state;

(3)  a summary of all disciplinary actions undertaken by the board during the year of the report; and

(4)  an accounting of all license fees and fines received by the board and all expenditures and costs of the board for such year.  A sufficient number of copies shall be printed to supply the needs of the board and the state library.

Sec.  8.  26 V.S.A. § 1353(1) is amended to read:

(1)  Investigate all complaints and charges of unprofessional conduct against any holder of a license or certificate, or any medical practitioner practicing pursuant to section 1313 of this title, and to hold hearings to determine whether such charges are substantiated or unsubstantiated.

Sec. 9.  26 V.S.A. § 1391(e) is amended to read:

     (e)  An applicant for limited temporary license, who shall furnish the board with satisfactory proof that he or she has attained the age of majority, and is of good moral character, that he or she is a graduate of a legally chartered medical school of this country or of a foreign country having power to grant degrees in medicine, that all other eligibility requirements for house officer status have been met, and that he or she has been appointed an intern, resident, fellow or medical officer in a licensed hospital or in a clinic which is affiliated with a licensed hospital, or in any hospital or institution maintained by the state, or in any clinic or outpatient clinic affiliated with or maintained by the state, may upon the payment of the required fee, be granted a limited temporary license by the board as a hospital medical officer for a period of one year only up to 54 weeks and such license may be renewed or reissued, upon payment of the fee, only four times whether or not consecutive for the period of the applicant’s postgraduate training, internship or fellowship program.  Such limited temporary license shall entitle the said applicant to practice medicine only in the hospital or other institution designated on his or her certificate of limited temporary license and in clinics or outpatient clinics operated by or affiliated with such designated hospital or institution and only if such applicant is under the direct supervision and control of a licensed physician.  Such licensed physician shall be legally responsible and liable for all negligent or wrongful acts or omissions of the limited temporary licensee and shall file with the secretary of the state board of medical registration board the name and address both of himself or herself and the limited temporary licensee and the name of such hospital or other institution.  Such limited temporary license shall be revoked upon the death or legal incompetency of the licensed physician or, upon ten days written notice, by withdrawal of his or her filing by such licensed physician.  The limited temporary licensee shall at all times exercise the same standard of care and skill as a licensed physician, practicing in the same specialty, in the state of Vermont.  Termination of appointment as intern, resident, fellow or medical officer of such designated hospital or institution shall operate as a revocation of such limited temporary license.  An application for limited temporary license shall not be subject to section 1391(d) of this title.

Sec. 10.  26 V.S.A. § 1733(a) is amended to read:

(a)  The state board of medical practice is responsible for the certification of physician’s assistants and the registration of physician’s assistant trainees and is authorized to promulgate the commissioner of health shall adopt, amend or repeal rules regarding the training, practice and qualification of physician’s assistants.

Sec. 11.  26 V.S.A. § 1735(a) is amended to read:

(a)  The number of physician’s assistants permitted to practice under the direction and supervision of a physician shall be regulated by the board after review of the system of care delivery in which the physician and physician’s assistants propose to practice.  The authority of a physician’s assistant to practice shall terminate immediately upon dissolution of the physician’s assistant’s employment contract, and the supervising physician shall immediately notify the board and the director of the office of professional regulation of such termination.  The physician’s assistant’s authority to practice shall not resume until he or she provides proof of another employment contract and protocol as approved under this chapter.

Sec. 12.  26 V.S.A. § 375(d) is amended to read:

(d)  A person aggrieved by a determination of the board may appeal in the manner provided under 3 V.S.A. § 130, within 30 days of the order, appeal that order to the Vermont supreme court on the basis of the record created before the board.

Sec. 13.  26 V.S.A. § 1736(c) is amended to read:

(c)  A person aggrieved by a determination of the board may appeal in the manner provided under 3 V.S.A. § 130, within 30 days of the order, appeal that order to the Vermont supreme court on the basis of the record created before the board.

Sec. 14.  REPEAL

26 V.S.A. § 1313(d) (applicability of chapter 23 to physician’s assistants) is repealed.

Sec. 15.  EFFECTIVE DATE

This act shall take effect from passage.

Approved:  May 23, 2003