Since the passing of the Affordable Care Act, there have been substantial changes in the organization and delivery of primary care. Some of these changes are keen on greater team involvement in care and expansion of the roles of each team member, especially Nurse Practitioners (NP’s). With the growing debates of health care policy and the continuous shortage of primary care physicians, many patients are shifting to family nurse practitioners for their primary care needs. However, with their expanding roles and move towards independency, nurse practitioners need to be aware of the standard of care, their scope of practice, as claimed by state and federal laws, and the legal implications of their greater power as health care providers.
What is A Nurse Practitioner?
Nurse practitioners are registered nurses who have advanced medical training, with the exception of surgery, and are allowed to provide many of the same services performed by physicians; all under state regulations of course. These services include diagnosing and treating health problems, performing child and adult care checkups, diagnosing and treating minor trauma, prescribing medications and discussing healthy living and disease prevention to patients. The Nurse Practitioner role was developed in 1965, with the Nurse Practitioner Education Program, the same year the Medicare Act was also passed. This profession has steadily been evolving over the years and an NP typically needs a master’s degree to practice, and a doctor of nursing practice (DNP) is earned after preparation. According to the National Council of State Boards of Nursing (NCBSN), NPs abide by the APRN consensus model, which is the regulation that includes preparation, education, licensure, and certification, needed before becoming registered independent practitioners.
Expanding Role of Nursing
Historically, nursing has struggled with boundaries, particularly with respect to the overlap between nursing and medical practice. However, as health care delivery has changed, many of the functions once defined as expanded practice now have been legally absorbed into the scope of professional nursing practice of the NP. After a report by the United States Department of Health, Education, and Welfare in1971, Congress made available federal funding to train nurse practitioners as primary care providers. However, not all states have adopted the same approach to regulation of the expanded role. Some states control advanced nursing practices through specific statutes, separate from the state’s nurse practice act. In some states, the nurse practice act authorizes advanced nursing practice, but the Board of Nursing has established regulations that define and control that practice. Such expanded role regulations usually require that a nurse demonstrate evidence of additional education or experience and, in some cases, the existence of a supervisory relationship with a physician.
Federal Regulations and Scope of Practice
The Affordable Care Act, being aware of the future and upcoming health care provider shortage, includes several components designed to strengthen the role of Nurse Practitioners, and non-physician health force in general. The Graduate Nurse Education demonstration (GNE) has provided up to 200 million dollars in the funding of five hospitals, to educate greater number of NPs. In addition, an increase of funding for NPs, through the National Health Services Corps (NHSC) provided incentives for Nurse Practitioners working in undeserved areas. Finally, the ACA funded 11 billion dollars to federal health centers and nurse-managed health clinics, which allowed NPs to help and treat another 94,000 different patients. However, the law gives the ultimate authority for determining who is a “primary care provider” to state licensing boards and regulatory authorities, such as Medicaid agencies and hospitals.
State Regulations and Scope of Practice
There are states that define scope of practice by the state legislature, but in other states, the authority is given to the board of nursing. Currently, the degree of NP autonomy varies from state to state, with just under half at this point operating under full statutory practice authority (23 of 50). In these states, nurse practitioners do not have to work within the old guidelines that restrict patient access to care. These guidelines require physicians to “sign off” on a vast amount of paperwork that creates confusion in an already burdened system, leaving patients without necessary medical equipment, such as oxygen or wheelchairs. In addition, eight states allow NPs to practice independently, but not prescribe medications independently. Some states also require additional training before NPs can prescribe independently, like Colorado, which requires 3600 hours of provisional prescribing, before getting fully licensed.
Furthermore, Nurse Practitioners have prescriptive privileges in all 50 states, with controlled substance administration in 49 states (AANP 2016). The American Associates of Nurse Practitioners (AANP) groups states into three categories: full practice (e.g., NV, ID, NB), reduced practice (e.g., IL, PA), and restricted practice (e.g., FL, CA, TX). In full practice states, NPs are able to assess patients, diagnose conditions, order diagnostic exams, and provide treatments under the authority of their regional state board of nursing. Reduced practice states require collaboration with another healthcare provider in at least one aspect of NP practice. Restricted practice states, which are concentrated mainly in the Pacific Northwest, require direct supervision or team management of at least one element of NP practice.
Advocates for Expanding Role
Pro independency advocates claim that allowing nurse practitioners full scope of practice would remove the “pseudo boundary” that exists between NPs and physicians. “Instead of fighting with each other, we should band together to challenge the insurers and pharmaceutical companies that are governing the way we practice and in doing so, driving physicians out of primary care,” Margaret Ackerman, DNP, states. Supporters claim that NPs can do much of what primary care physicians do, and at a fraction of the cost, but that state laws that protect physicians’ interests limit them. Through research Buerhaus, NPs are significantly more likely than primary care physicians to care for vulnerable populations. These include nonwhites, women, uninsured and people on Medicaid, and those living in rural areas. These healthcare minorities are all more likely to receive primary care from NPs than from physicians. NPs are also more likely to accept Medicaid recipients, provide care for the uninsured, and accept lower payments than are physicians who do not work with NPs.
Another major finding states that the cost of care provided to Medicare beneficiaries by NPs was significantly lower than primary care provided by physicians. Loosening state restrictions on NPs would break the grip physician-interest groups maintain on health care while driving down the cost of care, easing the burden on Medicare/Medicaid, and most importantly it would help provide critical primary care for the most vulnerable Americans.
Nurse Practitioners: When Licensing Reform Meets Health Care Policy
Opposition to Expanding Role
The effort to expand the scope of nurse practitioners' authority to treat a patient, however, has been opposed by different physician groups, such as the American Medical Association (AMA) and the American Academy of Family Physicians. Physicians skeptical of the ability of NPs to diagnose difficult illnesses have fought legislation that allows changes. Some physicians are also worried about the drop in income that would occur, if patients decided to see NPs instead. A professor at the University of Pennsylvania School of Nursing, Linda Aiken states, "That horse has already left the barn, With Obamacare coming in and millions of people getting insurance, there is no other way to provide them with reasonable access in the short term except to expand the role of NPs and physician assistants (PAs). It takes 20 years to train a doctor, so there isn't any alternative." There has been a constant “Turf War” lately between NPs and MDs and there have been big points supporting each side. However, Nurse Practitioners pushing for and wanting more autonomy need to be aware of the legal implications of the bigger role.
Legal Implications
The state nurse practice act and different state laws greatly impact a nurse practitioners practice and sets forth a standard of practice to their autonomy.
Seigel v. Husak (2006)
In the Seigel vs. Husak case, the Florida appellate court handled a nurse practitioner’s. who was working in a physician’s office, care of a patient. The nurse practitioner and the physician were sued over the care the nurse practitioner provided to the patient. The patient was seen for injuries sustained at work. The NP examined the patient, made a diagnosis, ordered treatment, and documented her care, which included popping sounds in each shoulder. The NP repeatedly saw the patient over time and his condition improved. However, the physician did not regularly review the nurse practitioners documentation and care of the patient, as the Florida law required. He had documented that he agreed with the nurse practitioners diagnosis and treatment.
But when the patient consulted with an orthopedic surgeon, it was determined that he needed reconstructive surgery on the biceps of both shoulders and the surgery later on did not go 100% as expected. The orthopedic surgeon claimed that if he had seen the patient earlier, that chance for a full recovery would have been better. The patient sued both the nurse practitioner and the physician, and the trial court awarded damages of $1,848,068 against both defendants. The nurse practitioner asked the court to grant her a verdict in her favor despite the judgment. Her motion was denied. She appealed that decision. The appellate court sent the case back to the trial court and ordered it to enter a judgment in favor of the nurse practitioner. It stated that a physician is responsible for conducting the course of treatment when working with a Nurse Practitioner and in this case, he had failed to comply. This ultimately resulted in the patient’s worsened condition for surgery and the physician, bore full responsibility for the worsening condition and for the monetary verdict for the patient, as concluded by the court.
After analysis of the case, it can be concluded that Nurse Practitioner need to realize the legal implications of wanting to become more autonomous in health care. With the full practice rights, NPs will be subject to a contract with the patient, similar to the Physician Patient contract. They will also be liable for different legal issues, including malpractice and negligence. If the NP were part of a independent contract in the case above, they would be accused of negligence due to their misdiagnosis, which comes to show that peer review of a doctor really is important in this profession. As the number of NPs increases and more are granted the ability to practice independently in the near future, the risk of exposure to malpractice claims is inevitable. A five year claims analysis states, “ In a 5-year claims analysis by the CNA and Nurses Service Organization (2007-2011), the most frequent allegations made against NPs involved failure to diagnose and delay in making a correct diagnosis (43%), failure to provide proper treatment and care (29.5%), and errors in medication prescribing (16.5%)”.
Appendicitis Misdiagnosis Case
In another case of negligence, 17-year-old girl with diminished appetite, abdominal pain, and vomiting was examined by an NP, where she was diagnosed with viral gastroenteritis. However, a week later, the girl returned to the clinic with worsening symptoms, and sent to the hospital by a pediatrician where she was eventually diagnosed with appendicitis. The patient eventually recovered but claimed to have continuous gastrointestinal dysfunction. The plaintiff first brought up a suit against the clinic, but then later brought in the NP, thinking the NP would be included by respondeant superior earlier. The motion was denied however due to the statute of limitations. The clinic however later impleaded the NP for negligence and went to a trial of the NP versus the clinic. It eventually concluded to a defense verdict.
This, through analysis, again goes to show the legal implications that NPs practicing though an independent standard of care, need to understand. This was yet another case of negligence, where a NP misdiagnosed a case that was later diagnosed correctly by a physician. This case ultimately supports physicians’ arguments that NPs are not as educated or have the same experience to make complex medical diagnosis as them.