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Amended Nebraska PA Licensure Statutes May Ease Reliance on PAs

on Wednesday, 7 October 2020 in Health Law Advisory: Zachary J. Buxton, Editor

After the Nebraska Unicameral made it clear in 2017 that nurse practitioners could function as independent medical providers under their state licensure as health care professionals, it was logical that Nebraska physician assistants would seek some similar amendments to their licensure statutes. Nebraska Governor Pete Ricketts signed LB 755 on August 14, 2020, which included such amendments. Some of these amendments clean up confusing language on PAs’ relationships with supervising physicians, which did not conform practically to the many different working arrangements for PAs in today’s rural health environment.

To some extent, the licensure regulations have historically assumed that PAs will be employed by their supervising physicians or a physician group practice. In many instances, PAs are employed by hospitals and health systems, in both rural and metropolitan settings. As amended, the licensure statutes now require that a PA have at least one supervising physician for each employer. And if the employer is a multi-specialty practice, the PA is required to have a supervising physician for each specialty practice area in which the PA performs medical services.

The relationship between the PA and supervising physician is still characterized as one in which the supervisor is delegating medical services to the PA and supervising their performance. The definition of “supervision” has not changed substantially, except that, as amended, it is “the ready availability of the supervising physician for consultation and collaboration on [rather than direction of] the activities of the physician assistant.” Interestingly, LB 755 deleted the clarification that “Contact with the supervising physician by telecommunication shall be sufficient to show ready availability.” Perhaps this deletion is explained by the additional deletion of authority for the Department to promulgate regulations defining the circumstances when more recently licensed PAs must practice within the physical presence of their supervising physicians. An inserted amendment states that “A physician assistant may render services in a setting that is geographically remote from the supervising physician.”

The licensure statutes have always required a written agreement between the PA and supervising physician. Now that agreement is referred to as a “collaborative agreement.” The statutorily required contents of that agreement have been deleted. So the historic challenge of preparing a list of all the medical functions that are delegated to the PA has been eliminated. The authority to declare death and/or sign a death certificate historically required an express delegation by the supervising physician in the agreement. That is no longer required. This de-emphasis of express delegations does not preclude a supervising physician from listing medical functions that are not delegated to the PA. But the statutes no longer suggest that possibility. Similarly, the statutory authority for PAs to prescribe drugs and devices no longer calls attention to the supervising physician’s opportunity to refrain from that delegation.

It is the supervising physician’s responsibility to maintain a copy of the collaborative agreement on file at each practice site where the PA performs services. Nebraska hospitals should require that a copy of the agreement be provided along with any PA application for clinical privileges. LB 755 deleted a number of requirements for a PA to provide services in a licensed hospital in Nebraska. The noteworthy deletion is the former requirement that the PA’s supervising physician be a member of the medical staff of the hospital. Certainly, licensed hospitals may continue to require this relationship with the supervising physician. But the absence of this requirement might be important for Nebraska hospitals that rely heavily on PAs, but from time to time have a shortage of physician medical staff members available to supervise the PAs on staff.

LB 755 expands the scope of licensure of PAs, expressly authorizing PAs to plan and initiate a therapeutic regimen, including ordering and prescribing nonpharmacological interventions, including, but not limited to, durable medical equipment, nutrition, blood and blood products and diagnostic support services such as home health care, hospice, physical therapy and occupational therapy. Additional LB 755 news is the opportunity for PAs to be supervised by qualified, licensed podiatrists. Of course, that supervision would be limited to the PA’s performance of podiatric services. 

At the time PA licensure was first enacted in Nebraska, there was a concern that unethical physicians would hire PAs and then fail to properly supervise them, thus threatening patient safety. For that reason, there was enacted a statute that imposed on the supervising physician strict liability for the negligence of the PA. Over the years, this has stood as a potential obstacle to the willingness of physicians to serve as supervising physicians for “co-employed” PAs. The legal concept of “respondeat superior” is generally accepted for holding an employer strictly liable for the negligent act of its employee. But strict liability is not necessarily appropriate for a supervising physician who is not the employer of the negligent PA. In many instances, the supervising physician does not exercise the control of an employer. A prior amendment to this strict liability statute for PAs was amended some time ago to impose that liability only on physicians “utilizing” PAs. Perhaps this provides some insulation for the supervising physician who is not the PA’s employer, if it is arguably the employer who is “utilizing” the PA. The only amendment to this PA liability statute by LB 755 was the deletion of a reference to the supervising physician’s “control” over the PA. This amendment perhaps clarifies that PAs under the newly amended licensure statutes are working more collaboratively with their supervising physicians. But it does nothing to correct the misplacement of strict liability on a supervising physician who does not employ the supervised PA. This statute should have been deleted in its entirety, relying instead on the concept of “respondeat superior” to assign liability for a PA’s negligence to the PA’s employer.      

While LB 755 has been a step forward toward greater independence in the practice of PAs in Nebraska, they remain dependent on physician supervision and delegation. As long as that is the case, they cannot be considered independent medical practitioners. Nevertheless, because the Medicare Conditions of Participation for Critical Access Hospitals impose very specific requirements for the supervision of both PAs and nurse practitioners, PAs’ and nurse practitioners’ independence remains quite similar when practicing in that setting.

The amendments enacted by LB 755 will become effective on November 14, 2020. In the meantime, the former statutes and regulations remain in force. After November 14, 2020, any Nebraska regulations that contradict the new amendments will be without effect.

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