Legal Nuts and Bolts for PNPs in Today s Healthcare Environment Karen Wilkinson MN, ARNP, LNC Wilkinson Legal Nurse Consulting

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1 Learning Objectives Legal Nuts and Bolts for PNPs in Today s Healthcare Environment Karen Wilkinson MN, ARNP, LNC Wilkinson Legal Nurse Consulting Identify how scope of practice within the PNP s home state can be used to maintain a level of practice to avoid liability Review policies on NP scope of practice outlined by federal agencies and private business that impact PNP practice Review legal implications for PNPs with examples applied to prescribing, hospital privileges, risk management, and reimbursement Explore legal issues of being employed as a nurse practitioner and/or a solo practice owner What is a Pediatric Nurse Practitioner? Other Designations Federal law-a nurse practitioner who performs such servicesas such individual is legally authorized to perform (in the state in which the individual performs such services) in accordance with state law and who meets such training, education, and experience required as the Secretary has prescribed in regulations. Physician extender Mid-level practitioner Nonphysican practitioner Advanced practice nurse State by State Titles for Nurse Practitioners Certified Registered Nurse Practitioner (CRNP) Advanced Nurse Practitioner (ANP) Registered Nurse Practitioner (RNP) Advanced Practice Nurse (APN) Nurse Practitioner (NP) Advanced Practice Registered Nurse (APRN) Advanced Registered Nurse Practitioner (ARNP) Certified Nurse Practitioner (CNP) Alabama, Maryland, Pennsylvania Alaska, West Virginia Arizona, Arkansas, Rhode Island Colorado, Delaware, Illinois, Indiana, New Jersey, Oklahoma, Tennessee, Texas California, Colorado, Delaware, Georgia, Indiana, Massachusetts, Minnesota, Montana, Nebraska, New York, North Carolina, North Dakota, Oregon, South Carolina, Virginia, West Virginia, Wisconsin Connecticut, District of Columbia, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Utah, Vermont, Wyoming Delaware, Iowa, Florida, Oklahoma, Washington Connecticut, Iowa, Maine, Michigan, New Mexico, Ohio, Tennessee Services Provided by NPs Obtaining medical histories and performing physical examinations Diagnosing and treating health problems Ordering and interpreting laboratory tests and x-rays Prescribing medications and other treatments Providing prenatal care and family planning services Providing well-child care and immunizations Providing gynecologic examinations and Pap smears Providing education about health risks, illness prevention, and health maintenance Providing counseling regarding the need for compliance with a diagnostic and/or treatment plan, course of illness, side effects of treatment, and/or prognosis Coordinating care and case management 1

2 Legal Authority as Providers State Laws Specialty, acute care settings, primary care Health plan designations Medical home Legal authority to be Primary Care Providers Laws specifically authorize NPs to be PCPs No law prohibits an NP from being designated as a PCP Example: each member (of a health maintenance organization) shall have an opportunity to select a primary physician or a certified nurse practitioner from among those available to the health maintenance organization (MD Health General Code Ann ). Legal Authority to be Primary Care Providers State Definition of a Nurse Practitioner State stature and/or Administrative Code recognizes nurse practitioners as primary care providers: State stature and/or AdministrativeCodeimplies that nurse practitioners may be primary care providers: State statute and/or Administrative Code does not recognize nurse practitioners as primary care providers: WA, OR, AK, ID, WY, SD, ND, KS, WI MO, MN, KY, OH, IA, IL, VT, RI, PA, NY, NJ,NH, DC, MA, MD, ME, DE, CT, WV, TN, NC, GA, FL, LA, MS, OK, TX, NM, NV, AZ, UT, CO, HI, CA MT, NE, MI, IN, AR SC, AL Nevada: Advanced practice registered nurse means a registered professional nurse who has specialized skill, knowledge and experience obtained from an organized formal program of training and who is authorized in special conditions as defined by NAC to , inclusive, to provide designated services in addition to those which a registered nurse is authorized to perform. Citation: Nev. Admin. Code State Definition of a Nurse Practitioner Washington: 1. A licensed advanced registered nurse practitioner (ARNP) is a registered nurse prepared in a formal educational program to assume primary responsibility for continuous and comprehensive management of a broad range of patient care, concerns, and problems. 2. The ARNP is prepared and qualified to assume primary responsibility and accountability for the care of patients. 3. ARNP practice is grounded in nursing and incorporates the use of independent judgment as well as collaborative interaction with other health care professionals when indicated in the assessment and management of wellness and health conditions as appropriate to the ARNP s area of practice and certification. 4. The ARNP functions within his or her scope of practice according to the commission approved certification program and standards of care developed by professional organizations. Citation: Wash. Admin. Code (1-4). Legal Scope of PNP Practice Allows PNPs to perform at their level of education and training Avoids imputation of liability for medical malpractice to someone other than the PNP Places accountability for both benefits and harm to patients squarely on the PNP Provides a basis for inclusion of PNPs in the legal definition of primary care providers Establishes that the PNP is a professional entity Allows forreimbursement for physician services, when provided by an PNP 2

3 Professional Association Definition for Scope of Practice American Academy of Nurse Practitioners: Nurse practitioners are licensed independent practitioners who practice in ambulatory, acute, and long-term care settings as primary and/or specialty care providers. According to their practice specialty, they provide nursing and medical services to individuals, families, and groups. In addition to diagnosing and management of acute episodic and chronic illnesses, NPs emphasize health promotion and disease prevention. Services include but are not limited to ordering, conducting and interpreting diagnostic and laboratory tests, prescription of pharmacologic agents and treatment, and nonpharmacologic therapies. Teaching and counseling individuals, families, and groups are a major part of nurse practitioners practice. As licensed independent practitioners, nurse practitioners practice autonomously and in collaboration with health care professionals and other individuals to diagnose, treat, and manage the patient s health problems. They serve as healthcare resources, interdisciplinary consultants, and patient advocates. American Academy of Nurse Practitioners. (2013). Scope of practice for nurse practitioners. Retrieved from Statutory versus Regulatory Scope of Practice Statutes- by legislature Changed by legislator introducing bill Regulations (Rules)- by state agencies Expand upon the statutes to include more detail Agency can change with input from interested parties Board of nursing/board of Medicine Scope of Practice Scope of practice is clearly defined by statute. Scope of practice is clearly defined by regulation. Scope of practice is vaguely defined by statute. Scope of practice is not defined. Scope of practice is defined by exception from a state law prohibiting the practice of medicine without a license. Scope of practice is defined by the individual physician, who may delegate to an NP by law. Specific Function Included in State s Definitions of NP Scope of Practice Diagnose AL, AZ, CO, CT, DC,FL, GA, HI, IA ID, IL, IN LA, ME, MD, MA, MN, MS, MT, NC, ND, NE, NH, NJ, NV, NY, OK, OR, PA, SC, SD, UT, VT, WA Treat AL, AZ, CP, CT, DE, DC, F GA. ID, IL, IN, KS, KY, LA, ME, MD, MA, MS, MN, MO, MT, ND, NE< NV< NH, NJ, NY, NC, OK, OR, PA, SC, SD, UT, VT, WA Prescribe AL, AZ, CO, CT, DE, DC, FL, GA, IA, ID, IL, IN, KS, KY, LA, MD, MA, ME, MN, MO, MS, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, OR, PA, RI, SC, SD, TX, UT, VT, WA, WI, WY Admit to Hospital AL, AZ, OR, WA Refer AL,AZ, CO, DC, DE, HI, IN, KY, LA, ME, MD, MN, MT, NC, NE, NH,NJ, NV, OK, OR, PA, SD, UT, WA Teach AL. DE, HI, IA, IL, IN, KS, LA, ME, MT, NV, NC, ND, NH, OK, OR, SD Order Tests AL, AZ, CO DC,DE, FL, GA, HI, IA, IL, KY, MA, MD, ME, MT, NE, NJ, NC, PA, WA, WI Perform Procedures WA Remove Epidural Catheter DE Assistin Surgery HI Perform Palliative Care Order Restraints Order Durable Medical Equipment IL SD MT, PA Mandated Physician Involvement with NP Practice Collaborate Supervise Delegate Direct Protocols Referral Process None AL, AR, CT, DE,GA, IA*, IL, IN, KS, LA, MA, MD, MN, MO, MA, NC, ND, NJ, NY, OH, PA, SD, VA, VT*, WV, WI FL, MI, ME*, SC, OK, TN GA, MI, MN, C, WV OK, AR AL, AR, CA, FL, GA, KS, MA, NJ, NY, SC, TS AK AK, AZ, CO, DC, HI, ID, KY, ME**, MT, NC, NE, NH, NM, NV, OR, RI, UT***, VT**, WA, WY *Iowa Administrative Code requires collaboration for medical functions; however, the Board of Nursing s position is that ARNPsfunction independently *First 24 months of practice only **After24 months ***Consultation/referral plan required to prescribe Schedules II-III controlled substances Regulation of Nurse Practitioners Boardof Nursing State Board of Medical Examiners and Board of Nursing Board of Nursing and Board of Medical Licensure and Discipline Nurse Licensure Compact of the National Council of State Boardsof Nursing, Nurse Registration and Nursing Education Board Nursing Care Quality Assurance Commission AL,AZ, AK, CA, CO, CN, DC, FL, GA, HI, ID, IL, IN, IA, KS, KT, LA, ME, MD, MA, MI, MN, MO, MT, NE, NV, NH, NJ, NM, NY, NC, ND, OH, OK, OR, PA, SC, SD, TN, TX, UT, VT VA, WI, WY AS DE RI WA Board of Examiners for Registered Professional Nurses WV 3

4 Practice Issues under State Regulation Requirements for licensure Prescriptive authority Requirement of collaboration or supervision Basis for license suspension, revocation, or nonrenewal Reimbursement under Medicaid Reimbursement by indemnity insurers Requirements of education programs Standards of practice Basis for Loss of License Grounds for revocation/suspension include: Guilty of fraud or deceit in procuring or attempting to procure a license to practice nursing Guilty of a crime of gross immorality Unfit or incompetent by reason of negligence or habits Habitually incompetent or.addicted to one of the habit-forming drugs Mentally incompetent Guilty of unprofessional conduct including: Abandonment of a patient Willfully making and filing false reports or records in the practice of nursing Willful omission to file reports or record nursing records or reports as required by law Failure to furnish appropriate details of clients nursing needs to succeeding nurse legally qualified to provide continuing nursing services to a client Willful disregard of standards and failure to maintain standards of nursing profession Failure to comply with the provision of Section of the General Laws, as a nurse practitioner Guilty of willfully or repeatedly violating any of the provision of the act and/or the rules and regulations adopted thereunder. Citation: R.l. Nursing Rules 12.0 Federal Regulation Care of patients covered by Medicare/Medicaid Billing Medicare Care of hospitalized patients insofar as participation by hospitals in the Medicare program is contingent on hospitals following certain regulations Care of residents in nursing homes In-office and hospital laboratories, under the Clinical Laboratory Improvement amendments (CLIA) Self-referral by healthcare providers, under the Stark Acts Prescription of controlled substances, under the Drug Enforcement Administration (DEA) Reporting of successful malpractice lawsuits against NPs to the National Practitioner Data Bank (NPDB) Confidentiality of information about patients under the Healthy Insurance Portability and Accountability Act (HIPAA) Discrimination in hiring and firing Facility access for disabled people E-prescribing and electronic medical records Drug Enforcement Administration DEA will assign a PNP a DEA number if: No felony on record PNP has a practice site State law permits PNPs to prescribe Prescribing Controlled substances DEA registration Guidelines for prescribing legally Right medicine at right time for right indication for right patient Practice protocol or guideline in facility or standard of care Before prescribing Address any cross-sensitivities/contraindications/drug interactions Inform patient of potential side effects Instruct patient to call or return if any adverse change in condition National Practitioner Data Bank Repository for damage award data Responsibility of the U.S. Department of Health and Human services Any $$ amount paid by a malpractice insurer must be reported State licensing boards must report adverse licensure actions Hospitals must report adverse clinical privilege actions Professional societies must report adverse professional society membership actions 4

5 Hospital Privileges Medical and Nurse Practice Acts Primary care providers privileges Advancement of profession Federal law Levels of privilege Govern the practice of medicine Protect the health and safety of the general public Regularly acquire a current copy of your state s Nurse Practice Act Contact your state board of nursing or other state agency Access the state s appropriate web site or the National Council of State Boards of Nursing (www.ncsbn.org) Medical Practice Act Definitions Definition of practice of medicine Engaging in practice of chiropractic prohibited, when. A person is practicing medicine if he or she does one or more of the following: (1) Offers or undertakes to diagnose, cure, advise, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality; (2) Administers or prescribes drugs or medicinal preparations to be used by any other person; (3) Severs or penetrates the tissues of human beings; (4) Uses on cards, books, papers, signs, or other written or printed means of giving information to the public, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions the designation "doctor of medicine," "physician," "surgeon," "m.d.," or any combination thereof unless such designation additionally contains the description of another branch of the healing arts for which a person has a license: PROVIDED HOWEVER, That a person licensed under this chapter shall not engage in the practice of chiropractic as defined in RCW Negligence and Malpractice When a PNP makes hundreds of decisions a day, it is inevitable that mistakes may happen Malpractice lawsuits against PNPs are rare but the sequelae are huge--both financial and emotionally MALPRACTICE LAWSUITS AGAINST PNPs are RARE What if I am Sued? Malpractice May feel like leaving the profession May doubt his or her ability to make decisions May resort to over-referring and seeking unnecessary consultation Insurance rates may be increased May miss days at work while testifying May have to pay legal expenses May have to defend before the state licensing board Failure of a professional to exercise that degree of skill and learning commonly applied by the average prudent, reputable member of the profession Negligence is predominant legal theory of malpractice liability 5

6 Requirements for Malpractice Claim Negligence The existence of a client-professional relationship a duty of care Behavior below the appropriate standard of care for professionals dealing in like circumstances A causal link between the practitioner s failure to conform to treatment standards and harm to the patient Actual injury to the patient Includes: Failure to follow up Failure to refer when necessary Failure to disclose necessary information to a patient Failure to give necessary care Duty Standard of Care Established when there is a provider-patient relationship Office visit, telephone conversation, causal discussion Whenever the PNP gives professional advice or treatment in any setting Ordinary and reasonable skill, diligence, and care that the PNP must use Level of expertise which is commonly used by other practitioners in the same specialty when caring for a patient Prudent person rule May be the same standard of care as a physician Judge or jury will decide if the defendant PNP met that standard Causation of Injury Lawsuits Against PNP s The breach of the standard of care must have caused an injury to the plaintiff. Missed diagnosis or delay in diagnosis Most common is infections, abscess, sepsis, and cancer Failure to order appropriate tests, delay in obtaining and addressing diagnostic test results Failure to refer Failure to obtain needed consultations, failure to refer patients for emergency treatment Failure to perform routine screening 6

7 How to Prevent Lawsuits How to Prevent Lawsuits Be careful about establishing patient-provider relationships. If practice guidelines or protocols have been adopted by the office or agency, follow them. When in doubt, take a conservative approach. Rule out the worst diagnoses early on. Know the limits of training and expertise. Follow up. Ensure diagnostic skills are current Refer as needed and follow-up Document, document, document Protect your license Let patients know your expectations Saying no Evidence-based practice Evidence Based Practice How to Prevent Lawsuits Cochrane Database of Systematic Reviews (www.cochrane.org) National Guideline Clearing House (www.guideline.gov) AAC Practice Alerts Joanna Briggs Institute (joannabriggs.org US Preventive Services Task Force (uspreventiveservicestaskforce.org) Tools for appraising the evidence Scales to help evaluate at Toolkit/Appraising-the-Evidence Know the Standard of Care and practice within it. NAPNAP AAP Specialty organizations How to Prevent Lawsuits Practice Guidelines Keep up with the Standard of Care Websites such as medscape.com, Epocrates.com, guideline.gov Newsletters and list serves Textbooks and reference books Professional journals Respected colleagues Continuing education Government agency generated guidelines Agency for Healthcare Research and Quality (AHRQ) AHRQ Guidelines 7

8 How Did I Make that Mistake? Electronic prescription system Order sets, selecting protocols Inattentional blindness Mental workload Multitasking Communication Collaborating Physicians Time spent with patient directly correlates to malpractice claim incidence. Good provider-patient communication means better outcomes and higher patient satisfaction. Good communication means fewer lawsuits. Physicians may also be liable Evaluate your agreement to collaborate Doctrine of Respondeat Superior Malpractice Insurance Risk Management Do I need insurance if my employer covers me under the hospital, University, or practice policy? Am I more likely to be sued if I have malpractice insurance? Should I get claims made or occurrence insurance? Which company s policy is best? Risk management prevents legal problems Business risk management Who is the boss? Broken partnerships 8

9 Risk of Making a Clinical Error What to Do if you are Named in a Lawsuit Incorporate into practice an awareness of how to avoid malpractice Practicing litigation avoidance techniques Call your professional liability insurance company to report the lawsuit. Do not talk about the suit with anyone but your attorney. Specifically, do not talk with the plaintiff/patient or the plaintiff s attorney. Consider retaining your own attorney if the suit is against a group. Never change a record after learning of a lawsuit (or for any other reason). A deposition-a pretrial information-gathering session-can be as important as a trial in terms of the need for preparation. What you say in deposition can lock you into what you may say at trial. Think carefully before agreeing to settle. Settlement awards will appear on an your NPDB record. Challenge References Pediatric Nurse Practitioners are authorized to practice through the authority of the state in which they practice. Competent PNP practice requires a complete understanding of all the legal, ethical, and professional determinants of practice. Such understanding empowers the PNP, establishes the parameters of safe practice and protects the patient and the community. Agency for Healthcare Research and Quality, national Guideline Clearinghouse (2013). Retrieved from American Academy of Nurse Practitioners. (2013). Scope of practice for nurse practitioners. Retrieved from practice.pdf Barton Associates NP Scope of Practice Laws. Retrieved from AANP Buppert, C. (2010). Prescribing: Avoiding legal pitfalls for NPs. Law Office of Carolyn Buppert, P.C. Buppert, C. (2015). Nurse Practitioner s Business Practice and Legal Guide. 5 th ed. Jones & Bartlett Leaning, LLC, Burlington. CNA, NSO. Understanding Nurse Liability, : A three part Approach CAN, NSO. Nurse Practitioner 2012 Liability Update: A Three part Approach. Health policy brief, Health Affairs. (2013, May 15.). Nurses practitioners and primary care. Retrieved from National Committee on Quality Assurance. National Practitioner Data Band. NPDB Summary Report. August 21, Pearson Report Retrieved from Saver, C. Keeping practice knowledge current. Part 1. Nurse Pract.2012: 37(12):1-5. 9

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