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How Are Reimbursement and Scope of Practice Linked?
JNP
How Are Reimbursement and Scope of
Practice Linked? LEGAL LIMITS Carolyn Buppert
Nurse practitioners (NPs) are having less trouble getting reimbursed than in the past, but some problems still exist. Some NPs are having difficulty getting on provider panels. In some states, some payers will reimburse NPs for certain procedure codes but not others. Some of the problems can be traced to physicians in decision-making positions who are protecting the turf of physicians. Some problems have to do with genuine ignorance of the law and the capabilities of NPs. But others have to do with state law on NP scope of practice. A state’s law on scope of practice, or lack thereof, can affect reimbursement. Medicare and other payers will pay NPs for performing “physician services” when the services are within the NP’s scope of practice under state law. Thirdparty payers do not pay NPs—or anyone else—for performing nursing services. Nursing services performed in an office are not reimbursed at all. Nursing services performed in a hospital, nursing facility, or patient home are reimbursed through the prospective payment or facility fee. Since the 1960s third-party payments for physician services have been separated from payments for other health care services. So the first condition that must be met by a clinician wanting payment under the physician payment system is that the clinician is performing “physician services.” Federal law defines physician services as diagnosis, therapy, surgery, consultations, and home, office, and institutional calls (42 CFR §410.20). Current procedural terminology (CPT) lists proce224
The Journal for Nurse Practitioners - JNP
dure codes for all physician services and the tasks that must be completed to bill a CPT code. To bill an evaluation and management service or a consultation service, CPT requires a clinician to perform the following services: 1. Perform a comprehensive evaluation (ie, history and physical examination) 2. Make a medical diagnosis 3. Make a medical decision (ie, decide on a course of treatment) 4. Order and/or perform treatments 5. Counsel patients 6. Coordinate care The first three services are the key to getting paid. To perform comprehensive evaluations, make medical diagnoses, and make medical decisions, an individual needs the legal authority to do so. Physicians get their legal authority to diagnose and treat through state law. An example of such a law is California’s: “The physician’s and surgeon’s certificate authorizes the holder to use drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions” (California Business and Professions Code, Section 2051). The penalty for doing any of these things without the legal authority to do so, in California, is as follows: Any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of April 2006
treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision (Medical Practice Act, CA Business and Professions Code, Section 2052). NPs get their authority to make medical diagnoses and order and perform medical therapies from state law. Here are some examples of state laws on NP scope of practice.
Maryland An NP may perform independently the following functions under the terms and conditions set forth in the written agreement: 1. Comprehensive physical assessment of patients 2. Establishing medical diagnosis for common short-term or chronic stable health problems 3. Ordering, performing, and interpreting laboratory tests 4. Prescribing drugs 5. Performing therapeutic or corrective measures 6. Referring patients to appropriate licensed physicians or other health care providers 7. Providing emergency care (Code of Maryland Rules and Regulations 10.27.07.02.A)
California The NP shall function within the scope of practice as specified in the Nurse Practice Act and as it applies to all registered nurses (California Code of Regulations 16:1485). www.npjournal.org
Michigan There is no scope of practice for NPs in state law.
Conclusion If, to get paid for performing physician services, an individual needs to perform a comprehensive evaluation, make a medical diagnosis, and make a medical decision and if the individual does not have the express legal authority to do any of those things, the individual may experience problems explaining why he or she should get reimbursed. In states where the scope of practice law does not explicitly give NPs the legal authority to make medical diagnoses and order and perform medical treatments, NPs still practice. Michigan NPs get their legal authority to diagnose and treat through delegation from a physician, which state law specifically allows. California NPs get their legal authority to diagnose and treat through standardized procedures, developed in the practice or facility with input from physicians, administration, and nursing. However, it is not easy to make a case for credentialing an NP as the provider for a health plan or paying the NP directly, rather than having payments for services they provide come through the physician employer. When payments must come in the name of a physician, it is not easy for NPs to document their productivity and revenuegenerating capabilities. To really be on firm ground with third-party payers, NPs need a scope of practice law that gives them the authority to do the things CPT says must be done to submit a bill and get paid. The American Medical Association has a policy of opposing any advances to NP scope of practice. So NPs who try to change state law will surely face a fight and are likely to lose the battle the first few times they try to get a new law passed. However, those who do not want to fight a losing battle should consider the risk of practicing medicine without being on firm legal ground, regardless of the issue of reimbursement.
Carolyn Buppert, CRNP, JD, practices law in Annapolis, Md. She can be reached at [email protected].
1555-4155/06/$ see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.nurpra.2006.02.005
The Journal for Nurse Practitioners - JNP
225
How Are Reimbursement and Scope of
Practice Linked? LEGAL LIMITS Carolyn Buppert
Nurse practitioners (NPs) are having less trouble getting reimbursed than in the past, but some problems still exist. Some NPs are having difficulty getting on provider panels. In some states, some payers will reimburse NPs for certain procedure codes but not others. Some of the problems can be traced to physicians in decision-making positions who are protecting the turf of physicians. Some problems have to do with genuine ignorance of the law and the capabilities of NPs. But others have to do with state law on NP scope of practice. A state’s law on scope of practice, or lack thereof, can affect reimbursement. Medicare and other payers will pay NPs for performing “physician services” when the services are within the NP’s scope of practice under state law. Thirdparty payers do not pay NPs—or anyone else—for performing nursing services. Nursing services performed in an office are not reimbursed at all. Nursing services performed in a hospital, nursing facility, or patient home are reimbursed through the prospective payment or facility fee. Since the 1960s third-party payments for physician services have been separated from payments for other health care services. So the first condition that must be met by a clinician wanting payment under the physician payment system is that the clinician is performing “physician services.” Federal law defines physician services as diagnosis, therapy, surgery, consultations, and home, office, and institutional calls (42 CFR §410.20). Current procedural terminology (CPT) lists proce224
The Journal for Nurse Practitioners - JNP
dure codes for all physician services and the tasks that must be completed to bill a CPT code. To bill an evaluation and management service or a consultation service, CPT requires a clinician to perform the following services: 1. Perform a comprehensive evaluation (ie, history and physical examination) 2. Make a medical diagnosis 3. Make a medical decision (ie, decide on a course of treatment) 4. Order and/or perform treatments 5. Counsel patients 6. Coordinate care The first three services are the key to getting paid. To perform comprehensive evaluations, make medical diagnoses, and make medical decisions, an individual needs the legal authority to do so. Physicians get their legal authority to diagnose and treat through state law. An example of such a law is California’s: “The physician’s and surgeon’s certificate authorizes the holder to use drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions” (California Business and Professions Code, Section 2051). The penalty for doing any of these things without the legal authority to do so, in California, is as follows: Any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of April 2006
treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision (Medical Practice Act, CA Business and Professions Code, Section 2052). NPs get their authority to make medical diagnoses and order and perform medical therapies from state law. Here are some examples of state laws on NP scope of practice.
Maryland An NP may perform independently the following functions under the terms and conditions set forth in the written agreement: 1. Comprehensive physical assessment of patients 2. Establishing medical diagnosis for common short-term or chronic stable health problems 3. Ordering, performing, and interpreting laboratory tests 4. Prescribing drugs 5. Performing therapeutic or corrective measures 6. Referring patients to appropriate licensed physicians or other health care providers 7. Providing emergency care (Code of Maryland Rules and Regulations 10.27.07.02.A)
California The NP shall function within the scope of practice as specified in the Nurse Practice Act and as it applies to all registered nurses (California Code of Regulations 16:1485). www.npjournal.org
Michigan There is no scope of practice for NPs in state law.
Conclusion If, to get paid for performing physician services, an individual needs to perform a comprehensive evaluation, make a medical diagnosis, and make a medical decision and if the individual does not have the express legal authority to do any of those things, the individual may experience problems explaining why he or she should get reimbursed. In states where the scope of practice law does not explicitly give NPs the legal authority to make medical diagnoses and order and perform medical treatments, NPs still practice. Michigan NPs get their legal authority to diagnose and treat through delegation from a physician, which state law specifically allows. California NPs get their legal authority to diagnose and treat through standardized procedures, developed in the practice or facility with input from physicians, administration, and nursing. However, it is not easy to make a case for credentialing an NP as the provider for a health plan or paying the NP directly, rather than having payments for services they provide come through the physician employer. When payments must come in the name of a physician, it is not easy for NPs to document their productivity and revenuegenerating capabilities. To really be on firm ground with third-party payers, NPs need a scope of practice law that gives them the authority to do the things CPT says must be done to submit a bill and get paid. The American Medical Association has a policy of opposing any advances to NP scope of practice. So NPs who try to change state law will surely face a fight and are likely to lose the battle the first few times they try to get a new law passed. However, those who do not want to fight a losing battle should consider the risk of practicing medicine without being on firm legal ground, regardless of the issue of reimbursement.
Carolyn Buppert, CRNP, JD, practices law in Annapolis, Md. She can be reached at [email protected].
1555-4155/06/$ see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.nurpra.2006.02.005
The Journal for Nurse Practitioners - JNP
225