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State Statutory Updates Liberate PAs in IA and NE; But RHC Conditions of Certification Lag Behind

on Wednesday, 5 May 2021 in Health Law Alert: Erin E. Busch, Editor

The legislatures in Iowa and Nebraska both updated licensure statues for physician assistants (PAs) in 2020. The focuses of the statutory amendments were slightly different in the two states, but both had the effect of providing greater PA independence from their supervising physicians. Legislative action gained steam after nurse practitioners were recognized in both states as independent practitioners in recent years, and even more so in anticipation of increased demand for medical services due to the COVID-19 pandemic.  

S.F. 2357 was signed into Iowa law and became effective on March 19, 2020. The new law was drafted with assistance by the American Academy of PAs, which has published a statement entitled “The Six Key Elements of a Modern PA Practice Act.” The six key elements, briefly, consist of:

  1. Licensure, as opposed to registration or certification.

  2. Full prescriptive authority, including Schedules II-V.

  3. Scope of practice determined at the practice level.

  4. Adaptable collaborative requirements, without proximity or frequency of collaboration requirements.

  5. Cosignature requirements determined at the practice level.

  6. Number of PAs a physician may collaborate with determined at the practice level.

References to “determinations at the practice level” imply that it is up to the clinical team, institution or physician and PA themselves to determine how the two will collaborate.

In an AAPA publication celebrating S.F. 2357, it was announced that the new legislation had brought Iowa’s PA licensure statutes up to meeting five of the six key elements, having added four of them. The AAPA article explains that S.F. 2357:

  • Allows PAs to prescribe all Schedule II controlled medications, consistent with their education and experience;

  • Removes chart co-signature requirements.

  • Removes the requirement that a physician visit remote locations staffed by a PA at least once every six months;

  • Allows a PA’s scope of practice to be determined at the practice site.

  • Authorizes PAs to be rendering providers under Medicaid; and

  • Updates language regarding dispensing and damages for medical liability.

S.F. 2357 specifically rescinds regulations that previously had governed PA practice in Iowa. For example, the elimination of any physician cosignature requirement was achieved by the legislature’s rescission of a regulation. In addition, regulations limiting the PA’s remote practice and establishing a frequency for the two practitioners to work in the same place have been rescinded.

Nebraska PA licensure law was amended by L.B. 755, which became effective November 16, 2020. L.B. 755 was not so helpful as to expressly state which regulations were rescinded by enactment of the new PA licensure amendments. Nebraska law does not allow state agencies, such as the Department of Health and Human Services, to promulgate regulations that are more specific than the enabling statutes, unless such authority is expressly delegated to the agency by the legislature. This makes it necessary to examine the statutes to determine whether regulations that “remain on the books” still retain the force of law. Two of the statutes repealed by L.B. 755 delegated to the Board of Examiners in Medicine and Surgery authority to promulgate regulations for the minimum hours or percentage of PA practice that could be outside the presence of a supervising physician and PA practice geographically remote from the supervising physician during the initial two years of practice. Implicitly, the regulations previously promulgated pursuant to those repealed statutes were rescinded. There were a few additional regulations that were identical to statutes repealed by L.B. 755. So those are likewise rescinded.

Neither Nebraska statutes nor regulations required PA documentation to be cosigned by a supervising physician. Limitations on prescription authority were generally deleted, and authority to prescribe Schedules II through V was clearly stated. Scope of practice was set up to be determined collaboratively between the PA and the supervising physician. Physicians and physician groups utilizing PAs retain liability for the PAs’ negligence, as long as the PAs were subject to their supervision. However, language stating that PAs are agents of their supervising physicians has been deleted. L.B. 755 clarified that PAs can practice geographically remote from their supervising physicians and, while supervision is continuous, it does not require the physical presence of the supervising physician. However, Nebraska physicians are permitted to supervise no more than four PAs.

The AAPA places emphasis on six key elements of a modern PA practice, but as far as state licensure is concerned, CMS is most highly interested in whether the state requires (for either nurse practitioners or physician assistants) physician medical record review or countersignature of PA/NP medical records; or authorizes PAs/NPs to admit patients. Under Medicare Conditions of Participation (CoPs), acute hospitals are allowed to grant admitting privileges to advanced practice providers (APPs) if state law allows it. Interestingly, the Interpretive Guidelines indicate that the CoPs do not prohibit granting of admitting privileges to APPs, despite this statement.  

Critical access hospitals, under the CoPs, are required to have a physician review and sign 100% of inpatient records for patients principally cared for by an APP. Of outpatient records of patients principally cared for by APPs, only a sample of medical records must be reviewed. The Interpretive Guidelines indicate that this sample could consist of 25% of the APPs’ outpatient medical records. But no review whatsoever is required if state licensure laws governing the APP do not require physician review or cosignature. This is noteworthy, since Iowa rescinded its regulation requiring PA cosignature, effective March, 2020. However, despite this latitude to forego physician review of outpatient medical records created by APPs, many critical access hospitals require review of a sample for purposes of quality assurance.

It is the Conditions of Certification (CoCs) for rural health clinics (RHCs) that seem to lag behind these state and federal regulations giving greater independence to PAs. In the CoCs for RHCs, the staffing regulations expressly require that a physician “[p]eriodically reviews the [RHC’s] patient records”. In turn, PAs are required to “[p]articipate with a physician in a periodic review of the patient’s health records.” There is no regulatory language that would allow these professionals to review less than 100% of the RHC records of services provided by non-physician practitioners. Indeed, the Interpretive Guidelines recommend that surveyors from the state agencies “[a]sk how the RHC ensures that all records of patients cared for by non-physician practitioners are periodically reviewed.” CMS instructs that an APP does not have to participate in a physician’s review of medical records of patients served by other APPs; only the review of the APP’s own patient records. The joint medical record review in an RHC is clearly intended to be educational for the APP as well as a quality assurance measure.

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