WSR 01-11-047

OFFICE OF THE GOVERNOR


[ Filed May 10, 2001, 3:47 p.m. ]

May 4, 2001


Nick Mason, ARNP

9840 East Leavenworth Road

Leavenworth, Washington 98826


Re: RCW 34.05.330(3) appeal of the March 12, 2001 denial by Washington Department of Labor and Industries (the "Department") of that certain petition to initiate corrective rulemaking proceedings relating to Advanced Registered Nurse Practitioners (the "Petition")


Dear Mr. Mason:


Thank you for your letter dated March 18, 2001 and received by my office on March 30, appealing the Department's decision to deny the Petition.


Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal, subsequent correspondence, and the relevant statutes and regulations. I have decided to affirm the Department's decision.


It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the agency whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also my policy not to second-guess the thoughtful and deliberate decisions of a state agency, so long as those decisions are well founded under the law. This is an extremely high standard of review.


The Department had a proper basis for its decision to deny the Petition for the reasons described below. The Petition appears to make its case on the basis of two arguments. I will review each argument in turn.


1. The Department allows certain classes of health care providers, besides physicians but not ARNPs, to act as L&I gatekeepers despite the fact that there is no statutory authority for excluding ARNPs.


There is no statutory provision that includes ARNPs within the definition of attending physician. RCW 51.28.020 describes the role of physicians in applications for workers compensation. RCW 51.36.010 describes the rights of patients in choosing a physician. And, RCW 51.32.090 makes reference to a physician certifying whether the worker is able to work. The revised code of Washington is silent as to the definition of ARNPs as physicians.


The Department has in the past extended the definition of physician by rule to osteopaths, naturopaths, dentists, optometrists and podiatrists but only for the specific type of problem that each of those providers deals with, not with generalized services provided by medical doctors.


Physician status was granted to chiropractors by legislative action in 1994 with the enactment of RCW 51.36.015. The legislature granted the physician status but again for only very specific chiropractic services. The legislature took up the issue of physician status for ARNPs during the 2001 regular session through Senate Bill No. 5797. However, the legislature chose not to extend such status to ARNPs, and the bill died at the end of the session.


2. RCW 18.79.050 and WAC 246-840-300 define the scope of practice of ARNPs and such practice is not defined as requiring a supervising physician.


RCW 18.79.050 clearly states that ARNP practice "means the performance of the acts of a registered nurse and the performance of an expanded role in providing health services as recognize by the medical and nursing profession, the scope of which is defined by rule by the commission." WAC 246-840-300 states that ARNPs "are qualified to assume the primary responsibility for the care of their patients. The Department recognizes the role ARNPs play in the treatment of patients. However, nothing in statute specifically authorizes the Department to allow ARNPs to complete and sign report of accident forms, time loss cards and reopening applications without the signature of the attending physician.


You have made reasonable arguments in support of your case. However, the Department has made a good faith decision that, under current law, it should not make rules as you request. Accordingly, I must deny your appeal. You may wish to pursue legislation in the next regular legislative session.


Thank you for your extensive efforts and profound commitment to your profession.


Sincerely,


Gary Locke

Governor


cc: Dennis W. Cooper, Code Reviser

Tim Martin, Co-Chief Clerk, House of Representatives

Cindy Zehnder, Co-Chief Clerk, House of Representatives

Tony Cook, Secretary of the Senate

Gary Moore, Director, Department of Labor & Industries

Washington State Code Reviser's Office