RIN 1215-AB35: The Family & Medical Leave Act of 1993; Proposed Rule

April 7, 2008

Mr. Richard M. Brennan

Senior Regulatory Officer

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Room S-3502

200 Constitution Avenue, NW

Washington, DC 20210

RIN 1215-AB35: The Family & Medical Leave Act of 1993; Proposed Rule

Dear Mr. Brennan,

On behalf of the more than 68,000 clinically practicing physician assistants (PAs) represented by the American Academy of Physician Assistants (AAPA), I wish to thank you for the opportunity to submit comments regarding the proposed rule revising certain regulations implementing the Family and Medical Leave Act (FMLA), published in the February 11, 2008 Federal Register (Volume 73, Number 28). The AAPA wholeheartedly supports the proposed changes clarifying the recognition of physician assistants as health care providers under the FMLA. The Academy believes that the improvements will go a long way in improving access to needed care, as well as in avoiding disruption in continuity of care for workers who seek FMLA-related medical treatment or certification from a physician assistant.

The American Academy of Physician Assistants is very pleased with the provisions in the proposed rule to – 



Additionally, the Academy is pleased that the revised Form WH-380, which accompanies the proposed rule, deletes all references to "physician's [sic] assistant under direct supervision of a health care provider."

The Problem with the Current FMLA Regulations

There are several sections in the current FMLA regulations that create confusion for employees who routinely receive their medical care from a PA. PAs are not a named category of health care provider in either the FMLA statute (section 101(6)) or the FMLA regulations. However, PAs are usually covered as a FMLA provider under section 825.118(b)(4) of the regulations which define "health care provider" as "any health care provider from whom an employer or the employer's group health plan's benefit manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits." The overwhelming majority of health plans and benefit managers acknowledge PAs as health care providers under FMLA, because the overwhelming majority of private and public insurance plans reimburse medical care provided by PAs. (A 1995 opinion letter from the Department of Labor (FMLA-72) confirms that PAs may treat FMLA-related medical conditions and sign the certification form if recognized by the employee's group health plan.)

Unfortunately, the role of PAs is sometimes confused by other language in the current FMLA regulations that references supervision. For example, section 825.118(c), states that “ ‘authorized to practice in the state’ as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other health care provider.” Additionally, section 825.114 defines “serious health condition,” in part, by reference to care provided by a “physician’s [sic] assistant under direct supervision of a health care provider.” The language regarding direct supervision is also repeated on the current FMLA certification form, WH-380. At best, this language is inaccurate and confusing; it suggests FMLA imposition of supervisory requirements that are not required by state law. The language does not accurately reflect how PA-physician teams practice and confuses employers and employees regarding whether PAs may perform medical care under FMLA. This language has been used by some employers to attempt to deny FMLA medical certification that has been signed by a PA.

PAs expand access to quality, cost-effective medical care. In many areas of the country, particularly in rural and frontier communities, a PA may be the only available health care professional available. Any restriction of workers to seek FMLA-related medical treatment or certification from a PA restricts patient access to quality medical care and disrupts continuity of care for those employees who routinely receive their medical care from a physician assistant.

 

Physician Assistants (PAs)   

Physician assistants are licensed health professionals, or in the case of those employed by the federal government, credentialed health professionals, who –

 

laboratory tests, diagnosing and treating illnesses, suturing lacerations, assisting in surgery, writing prescriptions, and providing patient education and counseling

 

Physician assistants practice medicine as delegated by and with the supervision of a physician. Physicians may delegate to PAs those medical duties that are within the physician's scope of practice and the PA’s training and experience, and are allowed by law. A physician assistant provides health care services that were traditionally only performed by a physician. All states, the District of Columbia, and Guam authorize physicians to delegate prescriptive privileges to the PAs they supervise. Based on its annual collection of data on the profession, the AAPA projects that over 245 million patient visits were made to PAs and approximately 303 million prescriptions were written by PAs in 2007.

PAs work in virtually every area of medicine and surgery and are widely acknowledged as essential health care professionals.

 

 

PAs are located in almost all health care settings and in every medical and surgical specialty. Fourteen percent of all PAs practice in rural areas where they may be the only full-time

providers of care. Approximately forty percent of PAs work in urban and inner city areas. The majority of PAs are in primary care. Nearly one-quarter practice in surgical specialties. Ninety percent of PAs practice in outpatient settings.

PAs deliver employee health services in diverse settings – corporate medical offices, occupational medicine clinics, private physician offices, hospital employee health departments, clinics for production plants or mines, remote pipeline locations, aboard ship, on military bases, and on the White House medical staff.

Physician Assistant (PA) Education 

PA programs provide students with a primary care education that prepares them to practice medicine with physician supervision. Physician assistant programs are located at schools of medicine or health sciences, universities, teaching hospitals, and the Armed Services. All PA educational programs are intensive education programs that are accredited by the Accreditation Review Commission on Education for the Physician Assistant.

The typical PA program consists of 111 weeks of instruction. The first phase of the program consists of intensive classroom and laboratory study, providing students with an in-depth understanding of the medical sciences. More than 400 hours in classroom and laboratory instruction are devoted to the basic sciences, with over 70 hours in pharmacology, more than 149 hours in behavioral sciences, and more than 535 hours of clinical medicine.

The second year of PA education consists of clinical rotations. On average, students devote more than 2,000 hours or 50-55 weeks to clinical education, divided between primary care

medicine and various specialties, including family medicine, internal medicine, pediatrics, obstetrics and gynecology, surgery and surgical specialties, internal medicine subspecialties, emergency medicine, and psychiatry. During clinical rotations, PA students work directly under the supervision of physician preceptors, participating in the full range of patient care activities, including patient assessment and diagnosis, development of treatment plans, patient education, and counseling.

Physician assistant education is competency based. After graduation from an accredited PA program, the physician assistant must pass a national certifying examination jointly developed by the National Board of Medical Examiners and the independent National Commission on Certification of Physician Assistants. To maintain certification, PAs must log 100 continuing medical education credits over a two-year cycle and reregister every two years. Also to maintain certification, PAs must take a recertification exam every six years.

 

Supervision in Physician-PA Team Practice

A PA’s scope of practice is determined by state law or federal standard, the supervising physician’s delegation of responsibilities, the PA’s education and experience, and the specialty and setting in which the PA works. Direction of the medical practice of the physician assistant is assured by the supervising physician, but this does not necessarily require the physical presence of a supervising physician at the place where services are rendered. Nor does this suggest that the PA does not exercise autonomous medical decision-making. Accountability for physician supervision of PAs may be determined prospectively, by scheduling, or retrospectively, by review of the charts – as determined by the physician-PA team. It is the obligation of each team to ensure that the PA’s scope of practice is identified; that delegation of medical tasks is appropriate to the PA’s level of competence; that the relationship of, and access to, the supervising physician is defined; and that a process for evaluation of the physician assistant’s performance is established.

All health care is subject to supervision – whether it is medical care provided by a physician or physician assistant or nursing care provided by a nurse practitioner. For the physician-PA team, supervision is, by design, more defined. The fact that the supervisory role is part of the physician-PA team practice – whether it be a physician visit every two weeks for a PA practicing in a federally certified rural health clinic in the US or by telephone communication on an as-needed basis for a PA working in Liberia as a foreign service health practitioner through the State Department – should not be construed to suggest that PAs possess a lesser degree of competency or exercise a lesser degree of autonomy in the provision of medical care.

The AAPA is most appreciative of the Department of Labor’s proposed improvements to the FMLA’s implementing regulations that positively reflect the role of the PA profession in delivering quality medical care to employees throughout the United States. Should you have any questions on the PA profession, the AAPA, or the AAPA’s comments on the proposed changes to the FMLA regulations, please do not hesitate to contact Sandy Harding, AAPA’s Director of Federal Affairs, at 703/836-2272, extension 3205.

Sincerely,

William F. Leinweber

Executive Vice President, Chief Executive Officer

 

 

 

Last Revised: 4/8/08