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Does Telemedicine Provide Necessary Physician Supervision for PAs? Not Unless Your Contract Says So.

on Tuesday, 7 September 2021 in Health Law Alert: Erin E. Busch, Editor

These days, both nurse practitioners and physician assistants practice regularly in hospital emergency departments.  In many critical access hospitals they cover primary call for the ED, with a supervising physician taking secondary call.  With increased reliance upon contracted telemedicine to cover the ED in a back-up fashion, questions have arisen whether a local back-up physician is required at all.  And if so, does that physician have to be available to respond in person for secondary call?  Or is availability by phone or telemedicine enough to meet supervisory requirements? 

For nurse practitioners, state licensure laws have eliminated most language requiring “supervision,” and the NPs are expected to collaborate when they want to.  But for physician assistants, the licensure laws can be much more demanding for physician supervision.  Some of the smallest critical access hospitals have a shortage of physicians available to serve on secondary ED call and would like to be able to rely upon telemedicine physicians to meet any supervision and back-up requirements. 

The Nebraska licensure statutes for PAs were amended in 2020.  The definition of the supervision required for PAs calls for: “the ready availability of the supervising physician for consultation and collaboration on the activities of the physician assistant.”  Prior to the 2020 amendment, the definition also stated “[c]ontact with the supervising physician by telecommunication shall be sufficient to show ready availability.”  It is not clear what was intended by this deletion.  Nevertheless, most critical access hospitals continue to require a physician supervisor to be available telephonically to meet a second supervisory requirement: 

“Supervision of a physician assistant by a supervising physician shall be continuous but shall not require the physical presence of the supervising physician at the time and place that the services are rendered.  A physician assistant may render services in a setting that is geographically remote from the supervising physician.”  (Emphasis added.)

It is hard to imagine that a physician’s supervision could be considered “continuous” if the physician could not be reached at least telephonically while serving on secondary call.  It is unfortunate that the statutory reference to telephonic availability was deleted from the statute, since this would have made it clear that telephonic supervision would be sufficient. 

In Iowa, the regulatory definition of “supervision” and the requirements for PAs staffing remote sites do not require that supervision be “continuous.”  Indeed, when a PA has sufficient experience and the confidence of his or her supervising physician, and medical care will not be available at the remote site unless the PA is allowed to practice there, the two licensees are required to communicate only once every two weeks.  The physician’s supervision of the PA at the remote site may be by “in-person meetings, two-way interactive communication directly between the supervising physician and the physician assistant via the telephone, secure messaging, electronic mail, or chart review.”  If a PA taking primary call in a critical access hospital is comparable to a PA staffing a remote clinic site, it seems that physician supervision of a PA staffing an Iowa critical access ED could be by telephone, and perhaps even by chart review. 

Kansas statutes governing PAs require the “responsible physician” to submit a “physician request form” stating that he/she “will always be available for communication with the physician assistant within 30 minutes of the performance of patient service by the physician assistant.”  So Kansas, like Nebraska probably requires the supervising or responsible physician to be available by phone whenever the PA is on primary emergency call at a critical access hospital. 

The next logical question is whether a small critical access hospital with limited physician staffing could rely strictly on contracted emergency telemedicine, and forego scheduling a local physician for secondary call by phone.  In 2013, CMS provided bold leadership for critical access hospitals to place heavy reliance on emergency telemedicine.  In a Survey and Certification Letter, CMS made it clear that a local physician was not required to be on call to be available in person when the critical access hospital ED was covered by an advanced practice provider.  Further, the critical access hospital CoP requirement of a physician being available 24-hours a day was declared to be satisfied by appropriate telemedicine services.  CMS also clarified that a telemedicine physician could fulfill the critical access hospital’s obligations under EMTALA to have a physician certify (prior to transfer) that the benefits of transfer outweigh the risks. 

These pronouncements by CMS clear the way for telemedicine satisfaction of federal Medicare certification requirements.  CMS does not have authority to make such pronouncements as to state licensure requirements for PA supervision by a physician.

As indicated above, telemedicine physician supervision could almost certainly satisfy licensure requirements in Nebraska, Iowa and Kansas.  But all of the state statutes portray physician supervision to be a very serious undertaking and certainly one that the physician must agree to.  So it makes sense that if a critical access hospital wishes to rely upon telemedicine for physician supervision of a PA taking primary call for its ED, the telemedicine agreement should specifically provide for that.  Understandably, telemedicine companies do not necessarily volunteer to provide that service and might even refuse to undertake it.  This means that critical access hospitals should strongly consider whether they wish to or need to rely upon telemedicine for physician supervision of PAs, and if so, enter contract negotiations ready to demand that service as a condition of the contract.  

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