By Diana Nordlund, DO, JD, FACEP

Compliance Officer, Emergency Care Specialists, PC, Grand Rapids, MI; Partner/Attorney, Nordlund|Hulverson, PLLC, Spring Lake, MI

Dr. Nordlund reports no financial relationships relevant to this field of study.

It seems axiomatic to suggest the COVID-19 pandemic has radically changed more than the face of healthcare in the United States. Some are asking if state of emergency provisions that loosened or suspended pre-COVID-19 regulations will remain. One example is regulations that govern the scope of practice and supervision of advanced practice providers (APPs).

Although APP is used often to group nurse practitioners (NPs) and physician assistants (PAs) for simplicity’s sake, there are pertinent differences in scope of practice and state regulations between the two. NPs have benefitted significantly from COVID-19-related regulatory changes, specifically those relaxing practice supervision requirements.

Twenty-two states temporarily waived some or all requirements of practice/collaboration agreements.1 Only 10 states took no action, and the remainder already allowed fully unrestricted practice (meaning that no practice/collaboration agreement was required.)1 Two temporary waiver states, Kentucky and Tennessee, have sunsetted some or all of these waivers, and all other states have specific sunset provisions tied to expiration of gubernatorial orders or the formal end of the declared state of emergency.1 PAs saw similar but much less far-reaching changes, with eight states (Maine, Michigan, New Jersey, New York, Louisiana, South Dakota, Tennessee, and Virginia) temporarily waiving required supervision agreements.2

One permanent change for both NPs and PAs came from the Home Health Care Planning Improvement Act, part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27. By one of the provisions of this act, APPs were permanently given the authority to order home healthcare for Medicare patients.3 Still, most regulatory changes will sunset with the cessation of the state of emergency. Even before the pandemic, there had been a relatively wide variance between states regarding practice patterns and supervision/collaboration agreements. Typically, these are left to state boards or other entities for oversight.

Particularly in those states with consistently strong lobbies for APPs, it may not be surprising to see emergency measures used as leverage toward broader practice rights in the COVID-19 era. Although all the state-based orders expanding rights/easing regulations have either already expired or will sunset with the expiration of the state of emergency, what will happen after? If, as is widely supposed, it is not possible (and/or desirable) to return to business-as-usual, what might new practice patterns look like? How will that affect physician medico-legal liability as it relates to supervision of/collaboration with APPs?

Although it is impossible to predict with certainty, it seems likely the states with strong APP lobbies will be galvanized to permanently loosen practice restrictions, particularly if those lobbies have data to show that patients benefited from wider access to care because of loosened restrictions. These changes would be effected through the normal legislative channels (as opposed to emergency executive order method), creating the opportunity for testimony to be heard on key issues before legislation is passed.

There is a twofold need to pay heed to the legislative process. First, providers must be aware of when changes sunset in each state if they are currently engaging in expanded practice/looser supervision arrangements (whether in their own state or across state lines) to avoid running afoul of the law and licensing boards. Second, they must pay heed to new legislation that permanently loosens supervision/collaboration restrictions, which is likely to be considered in many states that do not already have fully unrestricted practice.

Not surprisingly, physicians remain enticing bait on the proverbial medical malpractice hook, regardless of their degree of involvement in patient care provided by APPs.4 Until APPs are granted total independence (as is already true for NPs in some states), there will unlikely be a consistently successful argument that the supervision/collaborating physician is not just as liable as the APP in a medical malpractice action, even if he or she had no direct knowledge of the patient alleging malpractice.5

Even in states where fully independent practice is not allowed by law, particularly in rural and underserved areas, evolving practice patterns have established the validity of practice supervision/collaboration agreements that allow APPs to be the sole type of provider on site in the clinic, urgent care, and even emergency department (ED) setting.6 Yet the fact the supervising/collaborating physician is neither consulted nor necessarily on site has not proven to be sufficient distance to avoid malpractice liability in the event of a claim. Although there is some regional variability, it remains true that for all named providers, diagnostic error is consistently among the most common type of claim, regardless of the type of healthcare provider who is sued.7

What does this mean for practice regulations and provider liability in the COVID-19 era? It seems unlikely there will be significant changes for PAs or for physicians supervising PAs, considering the lack of robust change in laws regulating PA supervisory relationships associated with COVID-19 and the relative dearth of states allowing PAs to practice without some form of supervision. However, there may be more change on the horizon for NPs. Traditionally, NPs have had a robust lobby and have enjoyed more success than PAs in achieving wholly independent practice rights. If NPs are successful expanding their base of states allowing independent practice, then those same states also may see a rise in NP malpractice risk and a relative decline in physician malpractice risk concordant with the degree of increase in independent practice. This, of course, is speculation, but it will be interesting to follow moving forward.

Telehealth regulations saw a more rapid, sweeping change than those governing APP practice during COVID-19, due in part to the involvement of the federal government. It is easier to make sweeping changes at the federal level, so relaxation of federal restrictions for reimbursement of telehealth visits for Medicare patients was noteworthy. Although there has been relative consistency across the nation at the state level regarding telehealth changes, state-specific changes are, by their nature, unique to the state, and most were issued in response to the federal mandates.

After the feds announced this change, the states rapidly followed suit to include reimbursement by private/state-based payors. Interestingly, the feds could have changed the policy of 85% reimbursement for non-supervised PAs at that time, too, essentially taking a significant step toward sanctioning non-physician-supervised PA care, but they did not. At least as far as PAs are concerned, we may not see ongoing, sweeping changes in practice supervision/collaboration.

But will the telehealth changes stick? It looks like at least some might. For instance, Michigan Gov. Gretchen Whitmer signed H.B. 5412-5416 into law on June 24, codifying that face-to-face/in-person contact may not be used as a condition for insurer reimbursement. This expanded telehealth reimbursement within state lines after the expiration/rescinding of relevant emergency orders, despite protestations from insurers.8,9

Other states have been catalyzing this change, too. For example, California and Georgia both recently passed laws not only permanently waiving the face-to-face/in-person requirement, but also requiring reimbursement parity for telehealth visits.10 Additional states may follow suit.

If telehealth becomes permanently reimbursable in a much broader manner, what does this mean for emergency medicine? Emergency physicians (EPs) were early adopters of telemedicine, using the technology to advance care, particularly in rural/underserved areas (e.g., teleneuro, teleradiology, telepsychiatry, and teletrauma).11

However, to this author’s knowledge, telemedicine has not been implemented as a method to complete the medical screening exam (MSE) requirement of the Emergency Medical Treatment and Labor Act (EMTALA). Yet, given the anticipated permanent expansion of telehealth accessibility and reimbursement, this idea that EMTALA could play a role in completing the MSE has been considered in some circles. Could it work? Is it a good idea?

In brief, EMTALA requires hospitals with a dedicated ED to conduct an appropriate MSE for any patient who “comes to” the ED, whether it be by ambulance or other means, and to identify and stabilize existing emergency medical conditions (EMCs).12 The term “comes to” was the subject of many lawsuits in the early days of EMTALA. Currently, telemedicine visits have not been included in its definition.

There is a range of complex and severe conditions that present to the ED. There still is value in physically examining a patient (as well as other diagnostics that are presently widely available only via in-person encounters). Thus, it seems many presenting complaints would not be adequately screened by a telemedicine MSE. However, there may be a limited number of less complex conditions that could be screened if the right circumstances existed, the scope of which would require a detailed analysis. Yet even if this is the case, would it benefit EPs to implement such a system, even in limited circumstances?

EPs have proven we are the experts in identifying and managing EMCs. In today’s era, when patients already are self-selecting to urgent care centers and walk-in clinics (sometimes at a cost of significant delay in needed emergency care), EDs continue to effectively deliver EMTALA-related care nationwide. Thus, taking current events into consideration, a potential effective use of telemedicine MSEs would be during surge capacity situations, particularly those with high-risk encounters, such as with the COVID-19 pandemic.

In these limited situations, particularly those in which patients are self-selecting out of the ED in even greater numbers due to fear of exposure to infectious illness and/or when EDs are operating under surge conditions, telemedicine could deliver much-needed and appropriate MSEs. This concept has been applied in COVID-19-related care to direct certain patient traffic from the ED to alternate screening sites when screening criteria were met, thus decompressing crowded EDs and reducing exposure risk in a manner endorsed by the federal government.12 Considering the COVID-19 pandemic is not over, and that other similar situations may arise, proactive consideration of this methodology in limited situations is appropriate.

COVID-19 is a catalyst for change. Eventually, we will have a clear, significant data set to analyze whether loosened restrictions on APP collaboration/supervision did expand access to care and improve outcomes. Additionally, a similar data set will exist regarding whether conducting certain health encounters remotely can expand access to care, improve outcomes, and lower costs.

Moving forward, it will be interesting to see whether similar long-term protections are passed and codified at both the state and federal levels of government, paving the way for a revolution in healthcare access and efficiency.

REFERENCES

  1. American Association of Nurse Practitioners. COVID-19 state emergency response: Temporarily suspended and waived practice agreement requirements. Updated June 30, 2020.
  2. American Academy of PAs. COVID-19 state emergency response. Suspended/waived practice requirements. Updated July 9, 2020.
  3. Morr M. PAs and NPs celebrate Home Health Care Planning Improvement Act in COVID-19 legislation. Clinical Advisor. April 1, 2020.
  4. McMichael BJ, Safriet BJ, Buerhaus PI. The extraregulatory effect of nurse practitioner scope-of-practice laws on physician malpractice rates. Med Care Res Rev 2018;75:312-326.
  5. Quirk v. Zuckerman (New York Supreme Court, 2003).
  6. Sullivan W. Legal Ease: Physician extenders. Emergency Physicians Monthly.
  7. Saber Tehrani AS, Lee H, Mathews SC, et al. 25-Year summary of US malpractice claims for diagnostic errors 1986-2010: An analysis from the National Practitioner Data Bank. BMJ Qual Saf 2013;22:672-680.
  8. Michigan.gov. Gov. Whitmer signs bills increasing health care access into law. June 24, 2020.
  9. State of Michigan, 100th Legislature. Enrolled House Bill No. 5413.
  10. Center for Connected Health Policy. Telehealth policy. Legislation and regulation tracking.
  11. Sikka N, Paradise S, Shu M. Telehealth in emergency medicine: A primer. Telemedicine Primer. June 2014.
  12. Centers for Medicare & Medicaid Services. EMTALA requirements and implications related to COVID-19 (revised). March 30, 2020. 

Key Points

  • Some states already are sunsetting loose advanced practice provider (APP) practice restrictions.
  • Nurse practitioners (NPs) probably are more likely than physician assistants to see long-lasting relaxation of practice supervision/collaboration restrictions, largely depending on existing state law and lobbying efforts.
  • If a result of COVID-19 is more states allow wholly independent practice of NPs, physicians may see a commensurate decrease in malpractice risk in those states.
  • Telehealth is here to stay.
  • Telehealth could be a potential mechanism to satisfy the medical screening exam requirement of the Emergency Medical Treatment and Labor Act in a limited number of presentations for emergency care.