The new law, “Anesthesia and sedation requirements – Unprofessional conduct – Whistleblower protection,” was effective as of May 4, 2022, but the implementing regulations have not been passed or implemented yet. As specialized attorney Ethan Minkin explains, that is expected to take place by November 2022.
The measure aims at unprofessional conduct implications for healthcare providers as well as whistleblower protections, both common issues to regulate within healthcare. Towards that goal, it describes the requirements for various sedation levels in an outpatient setting.
Specifically, it states that an anesthesia or sedation provider may not cause a patient to undergo moderate or deep sedation, nor general anesthesia, in an outpatient setting (except an emergency department) without a series of circumstances.
To name a few, providers should first inform (written and verbally) on the level of anesthesia/sedation to administer; the provider’s identity, type of license & training; and a description of the patient’s monitoring to occur during anesthesia/sedation including oxygenation, ventilation and circulation.
Then, the patient must consent written and verbally on the procedure. If they are underaged, they must present a pediatric advanced life support certification; if an adult, they should have an advanced cardiovascular life support certification.
The new law requires that one individual with the knowledge & skills to recognize and treat airway complications be present in the procedure room, as well as the presence of an advanced cardiac life support equipment including a defibrillator, administrable oxygen, airway equipment, positive pressure ventilation equipment, and emergency and reversal medications.
Also, to complete the patient’s record with the appropriate information regarding patient’s name; the route, site, time & dosage of anesthesia/sedation; the patient’s periodic vital signs during procedure; and the name of who monitored the patient’s oxygenation and ventilation.
One of the questions arising from this new legislation is whether telehealth ketamine services may continue being provided in Utah. The law focuses on “an outpatient setting that is not an emergency department,” while not defining what an “outpatient setting” is.
Yet, Minkin believes regulations may, in fact, include telehealth as one of the kind. The fact is that the practical implications of the new regulations on ketamine clinics are yet unclear.
New legal definitions are stipulated for “anesthesia or sedation provider”, “deep sedation”, “general anesthesia”, “minimal sedation”, and “moderate sedation”. On this point, what stands out is that depending on the level of sedation, the legislation may or may not apply: if moderate, deep, or a general anesthetic, then the new law is triggered.
So, for ketamine providers, the question that could define whether they must comply with the new law or not, is if the level of sedation is minimal. As Minkin explains, providers at clinics will have to decide with a solid basis whether they determine ketamine is a “minimal sedation” procedure. If not, they would run the risk of “unprofessional conduct”, with the severe consequences that entails.
Regarding penalties, the law does not go into detail other than to note it is an act of unprofessional conduct. So each healthcare professional board would have to determine the appropriate level of discipline for the law violation.
Lastly, as to whistleblowers’ protections, they are set to encourage employees to come forward when there’s been a violation of the law or the regulations. Specifically, if the “employment action” is based on a report by the employee, the employer would not be able to take adverse action against the employee.
Indeed, the new law seems to help fill the void of otherwise unstrict laws, guidelines and general standards usually found in outpatient clinics, which in cases where sedation is present, makes a whole lot of sense.
Nonetheless, the final regulations haven’t yet been released. It’s possible that before that happens, the public will be entitled to provide feedback and questions on the new law, thus somehow determining the future of ketamine treatment clinics in the state.
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