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The Regulators

July 12, 2013

For reasons I will never understand I was reading the American Society of Anesthesiologist’s (ASA) monthly newsletter.  The theme of this issue was “governmental affairs”, read “lobbying efforts”.  Most of the entries are frankly horrifying but there was one in which the authors made an important point:  regulations are a tricky form of legislation.

Drs. Jennifer Root and Margarita Pate write about a proposed regulation in South Carolina concerning chiropractic care that had an anesthesia-related clause. The details of the particular case are not important to this discussion.  The distinction of regulation as opposed to legislation is the key here.  The legislative process, while we may dislike it and while it might appear to stifle rather than promote progress, is generally pretty transparent.  There’s a boat-load of hearings, lots of lobbying, public discussion, fights over ideals, fights over politics, and it’s ugly but at least it’s all out there.  Regulation is a different animal.  The authors of the article in the ASA newsletter, called “State Regulation; The ‘Other’ White Meat”, describe regulation as “A secondary method of implementing law and fostering change within state and federal agencies…far more worrisome in that there is less transparency and often lack input into the process…”.  Essentially the authors are saying that people can have a say in laws, but regulations can be passed without much or any input from the parties affected.

This is true on the national, state, and institutional levels.  Nationally, we can use the ACA as a model.  The law gives broad outlines of what will be done but the sticking points are in how the law is implemented.  The implementation part is where regulation rears it’s ugly head. For example, the ACA designated a whole bunch of money for electronic medical records, but the implementation of the requirements of this law have generated the meaningful use regulations, which is where the real problems are.  (Apologies to my lawyer friends if I am wrong on this).  On the state level, South Carolina tried to adjust some language regulating Chiropractors that included language about anesthesia, about which no anesthesia provider or representative was consulted or even notified.  Because the process of establishing regulations does not go through the same public hearing process, such language could “pass” without any affected person even knowing about it.  Institutionally, where do I begin?  A few infants in the NICU get an hospital-acquired infection and suddenly people in the OR can’t wear their own caps.  A surgeon does surgery on the wrong side and suddenly you have to do time-outs for epidurals (midline, by the way, no side or site) and you have to put your initials on the cast so everyone knows which broken leg we’re operating on.  Someone decided it was a good idea to make sure the OR nurses were ready for the patient to come in so now there’s a box that has to be checked.  Now we spend more time calling the room to see if the box is checked than we ever did actually calling the room and asking them if they are ready.

My point is that the ideas are good.  We want to prevent infection, prevent wrong-side surgery, make sure everyone is ready for surgery.  It’s in the implementation, the regulation, that the system falls down.  This is true on all levels, from Obama down to the mother who has to recount when her daughter first achieved 6-month old milestones far into her elementary school years.  I think that much of this problem stems from the fact that the people that make the regulations aren’t the ones that have to carry them out.  Something may seem reasonable to the guys in the board room but make no sense practically.  The result is regulations that no one believes in.  In my hospital we have to do a “safety check” when the patient arrives in the OR in which we ask the patient their name, date of birth, and what they are having done.  This despite that fact that the vast majority of those patients have been pre-medicated with a valium-like drug that legally impairs their ability to give consent or answer questions.  It sounds like a good idea:  check one last time you have the right patient and right surgery.  But practically it’s pointless.

The only way to not get regulated to death is to regulate ourselves in a way that makes sense and is good for both patients and providers.  If we let the government do it for us we risk spending a lot of our work day doing pointless things.

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