Jerry Kopel

Will you be breathing a little easier when the legislature adjourns in May of 2000?

That's a terrible pun, but the Colorado Society for Respiratory Care (CSRC) wants the legislature to regulate their occupation, and the Dept. of Regulatory Agencies (DORA) Sunrise report, for the FIRST time on respiratory care, says "yes".

The therapists have been trying since 1986 to get regulated. Having been knocked out three times, why get up for another try? Money.

DORA's report points out: "In some states, licensed respiratory therapists are eligible for third party reimbursement and Medicaid and Medicare reimbursement. Therapists in Colorado are not eligible for Medicaid, Medicare, or third party insurance reimbursement."

The major reason for over-regulation in health care is refusal by the feds and private health insurance companies to recognize the legitimacy of non-licensed health care professionals for direct payment for services performed, as opposed to payment through a licensed supervisor.

And a major reason why therapists have not gained regulation in Colorado has been opposition from the Colorado Hospital Assn. "The applicant" states the DORA report "expressed concern regarding cost savings measures in some hospital settings which result in respiratory care services being performed by unregulated persons with minimal on the job training from hospital staff."

DORA found the majority of individuals performing respiratory therapy are employed by hospitals. " that they limit the procedures that non-certified personnel are permitted to perform and supervise their activities," and "no documentation is available to demonstrate this practice has caused public harm."

Respiratory care is defined as "providing therapy, management, rehabilitation, support services for diagnostic evaluation and care of patients with deficiencies and abnormalities which affect the pulmonary system and other system functions."

Has the public been harmed by lack of regulation? "The CSRC has produced no documentation on harm that has occurred to patients in Colorado as a result of incompetent respiratory care rendered" (from the 1986 Sunrise report). "The applicant submitted no new information regarding actual harm to the public by the unregulated practice of respiratory therapy" (from the 1999 Sunrise report).

The Sunrise statute requires analysis of whether unregulated practice clearly harms or endangers the health, safety, or welfare of the public. So what's the difference between the 1999 report and the other three? The 1999 report accepts "potential" harm as the basis for regulation. The other reports did not.

DORA's report recommends education and testing requirements set by the National Board for Respiratory Care (NBRC). Two years of formal education in an accredited program followed by a clinical training program are required as well as passing the NBRC certification exam or some similar exam before being allowed to practice in Colorado.

While the report calls it a "registration program", it's nothing of the sort. It's a licensing law. You need to take a test after meeting educational requirements, pass the test, be subject to the defined scope of practice, and your license is subject to denial and disciplinary action. The only thing missing from the report is a state board, and you don't need that to set up a licensing law.

The report claims 1,100 persons presently providing respiratory care. That number seems a little low. The 1993 Sunrise report showed 1,500 practitioners. In any event, a third to a half of those presently practicing cannot meet the licensing standards suggested by DORA.

The actual bill will be prepared by the CSRC, who will also hand pick the sponsors. DORA's role will be to attend the hearings, and explain their findings and recommendations.

* * *

While DORA wants respiratory therapists regulated, it also wants audiologists deregulated. In 1995, the successful bill to "register" Hearing Aid Dealers included the "registration" of audiologists.

DORA's Sunset report admits the term "registration" applied to these two occupations is a lie. "Although the regulatory program for hearing aid dealers and audiologists is termed a registration is actually a licensing program.

"Registation implies there are no qualifications for individuals entering the practice. The state does require all registrants to meet education and/or experience requirements...Licensing programs have a range of disciplinary options available to them such as letters of admonition, suspensions, fines, or revocation." Those options are available under this "registration" statute.

Why do 186 or more audiologists want to be regulated? Money. DORA states "Audiologists are eligible for direct Medicaid and Medicare payments. They operate independently, and physician referral is not required for examination or testing by an audiologist. It is possible that if the current regulatory program were eliminated, audiologists would no longer be eligible for direct Medicaid and Medicare payments."

Why does DORA want to deregulate audiologists? Because outside of a few "unregistered practice" complaints, DORA has not received any complaints regarding audiologists, and, claims DORA, there has been no showing of harm or potential harm to consumers.

DORA proposes regulation of hearing aid dealers continue since that occupation has had a good number of complaints and disciplinary actions. The irony here is that the Food and Drug Administration recognizes hearing aid dealers as a specified health care profession, which I assume means eligibility for Medicare, Medicaid and insurance money.

Forty-seven states regulate audiologists and 17 states regulate hearing aid dealers. DORA will probably lose in its attempt to deregulate audiologists. There is a national and state audiologist association which will pay for competent lobbyists, and since the demise of the Sunrise-Sunset Committee, there are no legislators to carry DORA's recommendations to fruition.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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