Legislation regarding advanced practice nursing abundant in past year

MARCH 1994, VOL 59, NO 3

AORN JOURNAI,

Legislation Legislation regarding advanced practice nursing abundant in past year

A

dvanced practice nursing has been the subject of much legislation enacted in the past year. This article summarizes federal and state activity within the past year but is not intended to be a complete review. If you would like to provide input on any of the bills addressed in this column, please send a letter to your senator, representative, or governor. Addresses can be obtained from state government offices.

Federal Action

A

dvanced practice nursing has made progress in the federal arena in the past year. Information related to registration of practitioners who dispense controlled substances, reimbursement and billing issues, ability to practice as primary care providers, graduate degree requirements for advanced practice nurses (APNs), and “safe harbor” regulations follow. Registration of practitioners. In June 1993, the US Drug Enforcement Agency (DEA) published a final rule that requires a midlevel practitioner (MLP) who dispenses (ie, administers, prescribes) controlled substances to register with the DEA unless the MLP is exempt as an agent or employee of a DEA registrant (eg, hospital, physician). The American Association of Nurse Anesthetists has been opposed to this regulation since it was first proposed in February 1991. Initially, the regulations would have required all MLPs who were not registered with the

DEA and who either administered or prescribed controlled substances to register. Updated regulations state that only those certified registered nurse anesthetists (CRNAs) or MLPs who have prescriptive authority for controlled substances and choose to be independent contractors must register with the DEA. Of the 2,400 CRNAs in the United States who identify themselves as independent contractors, only those who practice in Alaska, New Hampshire, and Montana have prescriptive authority that includes controlled substances; therefore, only these nurses are required to register with the DEA according to this federal regulation.t Reimbursement, billing. Pending legislation (ie, S 833/HR 2386) would extend current reimbursement rules for reimbursement of APNs under Medicare. Related legislation (ie, S 466/HR 1683) would extend current reimbursement rules for reimbursement of APNs under Medicaid. This legislation would allow direct reimbursement for APNs and reimbursement provisions in the American Health Security Act of 1993 (ie, President Clinton’s health care reform proposal).2 Many APNs believe that i f they could receive Medicare and private insurance payments for services, they could save the nation billions in health care costs annually. Not only do nurses charge less, but they have the ability to ease the shortage of primary care physicians by taking over more of physicians’ routine duties. At press time, however, only a few states would pay APNs directly, and only about half of states required direct reimbursement for 707

AORN JOURNAL

nurses by private insurer^.^ Advanced practice nurses currently must bill through supervising physicians to receive pay from insurers for the basic medical services they perform. Services of certified nurse practitioners (CNPs) and clinical nurse specialists (CNSs) would be added to the list of services excluded from the definition of inpatient hospital services-for purposes of Medicare reimbursements-under a proposal pending in the Senate at press time. The draft bill specifies that CNPs, CRNAs, certified nurse midwives (CNMs), clinical social workers, clinical psychologists, and physicians assistants (PAS) could only bill Medicare benefits on an assignment-related basis and that no person is liable for amounts billed in violation of the assignment-related basis. The US Department of Health and Human Services (HHS) could impose sanctions on a practitioner who knowingly and willfully bills in violation of the requirement .4 The Health Care Financing Administration (HCFA) also has released new billing guidelines for the use of PAS, CNPs, and other physician extenders for Medicare patients outside rural areass The changes apply to Medicare’s “incident to the services of a physician” provisions. To qualify as an “incident to,” the service must be an integral, although incidental, part of the physician’s personal professional services, and the service must be performed under the physician’s direct supervision. These changes apply only when certain conditions are met. For example, the service must be one commonly furnished in the physician’s office or clinic. The supervising physician must be in the same office suite and immediately available to render assistance if necessary, and the extender must be licensed by the state to perform such services. Principle changes include the following. 0 Physician extender services may be billed at other than the lowest level of current procedural terminology codes. Physician extenders are not limited to taking a patient’s temperature or blood pres708

MARCH 1994, VOL 59, NO 3

sure reading, giving injections, and changing dressings. The HCFA says physician extenders can provide a host of services ordinarily performed by a physician, such as performing minor surgery, setting casts for simple fractures, reading x-rays, and performing other activities that involve the evaluation and treatment of a patient’s condition. 0 To bill for the service of a PA or CNP, a physician is not required to see every patient each time the patient is cared for by an extender. The physician must perform the initial service and subsequent services frequently enough to maintain “active participation in and management of the course of treatment.” When an extender performs an incident to service in the physician’s office or clinic, the supervising physician should bill Medicare using his or her own name and provider number. No modifier or indication that a nonphysician provided the service is necessary. The use of physician extenders is not limited to rural health professional shortage areas. The HCFA, however, does allow some extenders in rural shortage areas more autonomy than those extenders in urban areas or areas without shortages of health professionals. Ability to practice as primary care providers. Most Americans would be comfortable seeing an APN for primary care, according to a Gallup Poll done for the American Nurses Association (ANA). Of 1,000 people surveyed, 86% would be willing to see a nurse for physical examinations, prenatal care, immunizations, and treatment for minor infections. Only 12% said they would be unwilling to see an ANP.6 New rules by the HCFA would implement expansions in services and other changes made under the Omnibus Budget Reconciliation Acts of 1987 and 1989. The new regulations propose that state Medicaid agencies not be required to provide all early and periodic screening, diagnosis, and treatment services through every setting or provider type as long as Medicaid can

MARCH 1994, VOL 59. NO 3

demonstrate that adequate access to services is being provided. The ANA questioned the proposal to allow states to restrict provider types, stating that any state efforts to exclude APNs from providing these services would deprive families of access to these high-quality, effective, and cost-efficient practitioners. It also would violate federal Medicaid law, which requires that state Medicaid programs include the services of certified family nurse practitioners (CFNPs) and certified pediatric nurse practitioners (CPNPS).~ Several states are pursuing waivers from the federal government to exempt them from some of the requirements of the Medicaid program. These demonstration waivers are intended to allow the states to test new approaches to delivering care to Medicaid recipients.* If the requirements that the services of CNMs, CPNPs, and CFNPs must be included in the Medicaid scope of benefits are among the requirements that are waived, a state no longer would be obligated to include those services. If the waivers do not include such an exemption, the states must continue to include these services. Because federal law does not mandate that the states include the services of APNs other than CNMs, CPNPs, and CFNPs, any state that has decided to provide coverage for those services may remove the coverage from the Medicaid scope of benefits without permission from the federal government. In some states, there has been misunderstanding about the role of APNs as providers within Medicaid managed care programs. In Hawaii, for example, provider contracts that were drafted as part of the implementation of the state's health care reform plan initially allowed only physicians to serve as primary care providers, even though the state's Medicaid waiver did not exempt it from the federal mandate to include CNM, CPNP, and CFNP services in its scope of benefits. The ANA and the Hawaii Nurses Association were able to clarify this, and the state determined that APNs would be able to serve as primary care providers.9

AORN JOURNAL

Graduate degree requirements. The American Association of Colleges of Nursing (AACN) has released its official statement calling for a graduate degree requirement for advanced practice. The position embraces Nursing's Agenda f o r Health Care Reform and the federal initiative Healthy People 2000. The National League for Nursing and the ANA also support a graduate degree requirement for APNs in the future. Proponents of the higher standard say a graduate degree requirement will position nurses to take a greater role in primary health care under a reformed health care system.'O Safe harbor regulations. Safe harbor regulations are anti-kickback statutes intended to prevent practitioners from referring patients in exchange for payment. One of the new safe harbors would permit referral by one member of a group practice to another member of the same practice. The definition of group practice proposed by the US Office of the Inspector General of the HHS would permit only physician group practices to fall within the proposed safe harbor, even though the anti-kickback statutes apply to all practitioners. Group practices composed of APNs would not qualify for protection. Under the proposed standard, a group practice would have to be made up entirely of physicians to qualify. Another proposed safe harbor would permit payment by a hospital or other entity for some or all of the costs of malpractice insurance premiums for practitioners who engage in obstetrical practice, including CNMs."

Alabama t press time, S 45, which would name

A

CNMs as the basic obstetric service providers in rural areas, was in committee. The legislation would provide for liability insurance for CNMs. Previously known as S 400, S 46 also was in committee at press time. Under existing law, the practice of practical nursing is under the direction of a licensed professional nurse or a licensed or legally-authorized physician. This 711

MARCH 1994. VOL 59. NO 3

bill would authorize CNPs with specified qualifications to perfom the services of physicians in rural areas when there is a physician on call to assist.

Alaska

E

nacted in March 1993, H 114 gives APNs authority to dispense medications and prescribe therapeutic or corrective measures.

Arizona ith the passage of S 1092 in April 1993, CNPs and PAS are considered primary care providers.

Arkansas

A

ccording to Act 577, insurance now is required to cover services of CRNAs to the same extent that those services are covered under the Arkansas Medical Practices Act. Additionally, S 543, enacted in March 1993, authorizes public health nurses, CNPs, and CNMs to request and receive laboratory test results from the department of health. ELIZABETH A. HUNT,RN, MBA, CNOR LEGISLATIVE COMMITTEE REGIONVI

California

S

till in committee at press time, A 1210 would e n a c t t h e Phase-In M i d w i f e r y Licensing Act, which would require the state department of health to monitor the practice of 50 qualified direct-entry (ie, lay) midwives. This monitoring is designed to document the effectiveness and safety of the practice of midwifery. Also in committee at press time was A 1294. This bill states that a license to practice midwifery authorizes the holder to provide necessary supervision, care, and advice to women during pregnancy, labor, and the postpartum period: to conduct deliveries on his or her own responsibility: to provide immediate postpar-

AORN JOURNAL

tum care of the newborn: and to provide certain reproductive health care as prescribed. A licensed midwife must consult with a licensed physician and surgeon in the e v e n t of a patient’s significant deviation from normal pregnancy or delivery. Other legislation (ie, A 518) requires the Board of Registered Nursing to perform a oneyear study of possible California certification for CNSs. Current law does not recognize the CNS designation, and a state certification program is a prerequisite for federal reimbursement of APNs under the Medicare and Medic a l regulations. Under SB 350, lay midwives can help deliver babies and provide prenatal and postpartum care in California. They must undergo a threeyear educational program that is consistent with the recommendations for non-nurse midwives approved by the American College of Nurse Midwives. MARGARET E. BARROW-SPIES, RN. MED, CNOR, CNAA LEGISLATIVE COMMITTEE REGIONVIIl

Colorado

T

he Colorado Nurse Practice Act will expire in July 1995 unless it is reenacted by the C o l o r a d o General Assembly before then. Legislative staff members are studying the act and will prepare a report for hearing this summer. Legislation must be enacted by the end of the session in May 1995 or Colorado will be without a licensure law for nurses.Iz Colorado has, under H 105 1, decriminalized the unlicensed practice of direct-entry midwifery by excluding midwifery from the definition of the practice of medicine. This legislation does not immunize direct-entry midwives from other civil or criminal liability.

Connecticut

T

he Connecticut State Board of Nursing opposes second licensure for APNs because this would introduce new fees to practice and regulate 713

MARCH 1994, VOL 59, NO 3

AORN JOURNAL

nursing more restrictively than other licensed professions. This proposal refers to APNs and not to the advanced registered nurse practitioner (ARNP) license in Connecticut, which is limited to prescriptive authority only. In Connecticut, if an APN does not want to prescribe, the nurse is not required to obtain an ARNP license.13 SHARON A. MCNAMARA, RN, BSN, CNOR LEGISLATIVE COMMITTEE REGIONI-A

Georgia

P

roposed legislation (ie, H 904) would prohibit the practice of midwifery without a certificate of authority from the state department of human resources. It also would prohibit midwives from attending any cases other than those of normal childbirth and from performing any internal examinations or manipulations of any kind. This bill was in committee at press time. Also in committee at press time was S 312, which would authorize CNSs in psychiatric/ mental health practice to perform certain acts that physicians, psychologists, and clinical social workers are authorized to perform regarding people who are mentally ill, alcoholic, o r drug-dependent. This legislation would define a CNS in psychiatric/mental health practice as a person who is authorized under state law to practice as a registered professional nurse (RPN) and who is recognized by the state board of nursing to be engaged in advanced nursing practice as a CNS in psychiatric/mental health.

Illinois

U

nder S 608, which was in committee at press time, the Illinois Public Aid Code would be amended to require the state department of public aid to provide payment for services rendered by CNPs.

Kansas

E

nacted in April 1993, S 187 removes the limitation on the mandate that an ARNP be

714

reimbursed by insurers for services performed anywhere in Kansas other than in certain counties. Previous legislation mandated such reimbursement only if the county was designated as medically underserved.

Louisiana

U

nder H 1689, enacted in June 1993, an RN who is properly licensed by the state as a primary nurse associate (ie, CNP, CNM, CNS) and who is employed by a municipal, parochial, or state-operated public health clinic, may insert into a patient’s subcutaneous space a medication implant or deliver a therapeutic regimen of medication to be c o n s u m e d by a patient off the premises, to treat sexually transmitted diseases, or 0 t o prevent pregnancy, provided such insertion or delivery is performed under a protocol approved by a licensed physician.

Maine

E

ntry-level nurses in Maine with bachelor’s degrees may be eligible for supplemental licensure examinations to differentiate them from associate degree nurses. In 1985, the Maine legislature amended the state’s nurse licensure law that requires recognition of two levels of nurses (ie, those with bachelor’s degrees, those with associate degrees) by 1995. A measure that was pending before the state legislature at press time would implement two levels, including a supplemental licensure examination to be administered to future graduates of entry-level BSN program~.’~

M~rylan~

A

s of May 1993 and the passage of S 513, a nurse practitioner may personally prepare and dispense a starter dosage of any drug he or she is authorized to prescribe if the starter dosage complies with legal

AORN .IOURNAl,

MARCH 1094. VOI. SO, N O 3

0

labeling requirements, no charge is made for the starter dosage, and the nurse practitioner enters an appropriate notation in the patient's medical record.

Massachusetts

R

ecent legislation (ie, Chapter 332, enacted in December 1993) mandates insurance benefits (ie, third-party reimbursement) for CRNAs for services rendered.

Michigan

I

f H 4989 and H 499 I , which were in committee at press time, are enacted, insurance coverage that provides for maternity services shall provide coverage for such services whether provided by a physician or by a CNM.

Nebraska

Additional categories of certification will include pediatric, school, women's health. obstetrics and gynecology, neonatal, maternal/ child, and o n c o l ~ g y . ' ~ SHARON A. MCNAMARA, RN, BSN, CNOR LEGISLATIVE COMMITTEE REGIONI-A

C

ertified nurse practitioners who have fulfilled requirements for prescribing drugs may do so in accordance with rules promulgated by the state board of nursing under S 145. Previous legislation allowed nurses to prescribe only under the supervision of a licensed physician or in a collaborative agreement with a physician.

New Yoi-k

I

f S 4261 becomes law, the practice of registered professional nursing by a nurse practiules and regulations are being developed tioner will include practice as a CRNA. The that would allow licensed practical nurses CRNA will have authority to prescribe drugs to become certified in IV insertion and nasofor those diagnostic, therapeutic, or surgical gastric tube insertion. procedures that the C R N A provides upon JOANL. REED,RN, MA request, assignment, or referral by other health LEGISLATIVE COMMITTEE care professionals. The CRNA is individually REGION VII-B responsible for his or her own practice. This bill was in committee at press time. New Jersey Other bills still in committee at press time include A 4075/S 2492, which would amend n August 1993. the Health Care Adminiinsurance laws and mandate third-party reimstration Board (HCAB) passed new regulabursement for covered services when provided tions that allow increased use of CNPs and by an RPN. Coverage is required only if the CNSs in residential health care facilities. The nature of the patient's illness requires nursing HCAB agrees that these professionals can concare that can be appropriately provided by a duct annual physical examinations in such person with the education and professional skill facilities when asked by a collaborating physiof an RPN and the care is necessary in the cian. For the purpose of these regulations, treatment of the patient's illness. CNPs and CNSs include professionals certified Also still in committee was A 85.35. which in psychiatric/mental health. c o m m u n i t y permits simple health care tasks and personal health, adult health, family health, or gerontolhygiene services to be prescribed or ordered by a PA or CNP. Existing law requires that perogy. The New Jersey Board of Nursing has prosonal care services, including services to assist posed regulations for the certification and prewith personal hygiene, dressing, feeding, and scriptive practice of C N P s and C N S s . essential household tasks, be prescribed by a

R

I

717

AORN .IOURNAL

MARCH 1994. VOL 59,NO 3

physician in accordance with a plan of home care supervised by an RPN. SHARON A. MCNAMARA, RN, BSN, CNOR LEGISLATIVE COMMITTEE REGION I-A

882 in April 1993, eligible for Medicaid reimbursement. If S 878/H 1206 is enacted, it would remove site restriction criteria from CNPs who have authority to write and sign prescriptions and dispense drugs. This bill was in committee at press time.

Oregon Texas

A

ccording to S 484, which was enacted in July 1993, a nurse practitioner employed by a college or university student health center that is registered with the state board of pharmacy may dispense medications to patients who are students of the college or university. Also enacted in July 1993 was H 2998, which states that a licensed nurse practitioner who is specially certified as a CNP is authorized to provide medical examinations when required to determine the eligibility of a child for special education. T h e Council on Nurse Practitioners’ Privileges of Writing Prescriptions was abolished by S 127, which was enacted in August 1993. In place of the council, the Oregon State Board of Nursing will determine the drugs and medicines that may be prescribed by CNPs. As of May 1993, any hospital in the state may grant admitting privileges to duly licensed CNPs for purposes of patient care. According to S 479, hospitals may refuse such privileges only on the same basis that privileges are refused to other medical providers. As of November 1993, H 2188 allows CNPs and PAS to perform department of motor vehicles examinations for chronically ill and disabled motorists. Also, S 1058 allows CNPs and PAS to perform certain laboratory tests in offices without being subject to the full regulatory apparatus of federal regulations. MARGARET E. BARROW-SPIES, RN, MED, CNOR, CNAA LEGISLATIVE COMMITTEE REGIONVIII

0

ne recent gain for APNs is an expanded definition of professional nursing to include providing professional samples at sites serving underserved populations. Other legislation affecting APNs in Texas is the Small Business Insurance Bill (ie, H 2055), which requires payment for services of all licensed providers, including APNs. This legislation, which was enacted in September 1993, amends the insurance code to address the problems small employers have in obtaining affordable insurance f o r employees. Advanced nurse practitioners are eligible providers within the scope of practice under these plans. This is the first legislation mandating reimbursement to APNs from private insurance. ELIZABETH A. HUNT,RN, MBA, CNOR LEGISLATIVE COMMITTEE REGIONVI

Utuh

L

egislation that went into effect in May 1993 (ie, S 149) changes definitions regarding professional corporations to include people licensed to practice in the nursing professions. Professional incorporation can provide tax benefits and other incentives in some states. JOANL. REED,RN, MA LEGISLATIVE COMMITTEE REGIONVII-B

Washington

Tennessee

S

ervices rendered by CPNPs and CFNPs are now, as a result of the passage of H 1166/S

I

f H 1819 becomes law, it will allow the state board of nursing to define the criteria for licensure as an ARNP. Any requirement for a 719

AORN JOURNAL

MARCH 1994, VOL 59, NO 3

master’s degree for ARNP licensure must be preceded by a study by the board, and any findings and recommendations of the study must be submitted to the legislature before the adoption of any rule requiring a master’s degree for ARNPs. As of May 1993 and the passage of S 5922, a previous law that prohibited CRNAs from selecting, ordering, o r administering controlled substances was amended. These professionals no longer are prohibited from these practices. Additionally, according to S 5922, CRNAs can continue their current practices without having full prescriptive authority. They may select, order, and administer anesthesia with no disruption in their scope of services. E. BARROW-SPIES, RN, MED, MARGARET CNOR, CNAA LEGISLATIVE COMMITTEE REGION VIII

Wisconsin

A

ssembly Bill 756, if enacted, will allow the state board of nursing to grant prescriptive authority to specified nurses as well as determine the rules, education, and requirements for those nurses who have prescriptive authority. Under current law, only physicians, dentists, podiatrists, and optometrists may prescribe drugs or prescription medical devices. This bill also requires that the board specify areas of practice within which RNs may prescribe and what, if any, drugs may not be prescribed by RNs. JUDITHH. BERNHARDY, RN, BS, CNOR LEGISLATIVE COMMITTEE REGION V Notes I . M B Wachter, “The DEA and CRNA’s” New .lei.sey Nurse 23 no 9 (1993). 2. Association of Operating Room Nurses, Inc,

Legislative Regulatory Report: December 1993 (Denver: Association of Operating Room Nurses, Inc, 1993) 4. 3. A Petty, “Nurse practitioners fight job restrictions,” The Wall Street Journal, 9 Sept 1993, sec B 1 . 4. “AACN endorses separate exam for bachelor 720

degree nurses,” Legislative Network ,for Nurses 10 (Dec 15, 1993) 190. 5. G Borzo, “HCFA opens door, a little, to physician extenders,” Arnericun Medical News, 13 Dec 1993, 11. 6. “Poll backs advanced practice nurses,” American Medical News, 4 Oct 1993,2. 7. D Keepnews, “ANA comments on proposed EPSDT regulations,” Capital Update (Dec 17, 1993) 6-7. 8. “State Medicaid waivers and advanced practice nursing services,” Capitul Update (Sept 24, 1993) 5-6. 9. Ihid. 10. “AACN releases official position on graduate degrees for APNs,” Legislative Network .f;w Nurses 10 (Sept 8, 1993) 131-132. 1 1 . D Keepnews, “ANA comments on new ‘safe harbor regulations,”’ Capital Update (Dee 17, 1993) 6. 12. Colorado Nurses Association, “CNA in action ‘on the hill,”’ CNA Memorandum (Denver: Colorado Nurses Association). 13. J Thibodeay, “Nursing toward the year 2000: Regulatory issues,” Connecticut Nursing News 66 (November/December 1993). 14. “AACN endorses separate exam for bachelor degree nurses,” 190-191. 15. T A Tamborlane, “NP/CNS regulation update,” New Jersey Nurse 23 no 8 (1993).

Corrections The advertisement for the new A O R N Standards and Recommended Practices, which appears on page 306 of the January 1994 issue of the Journal, lists an incorrect telephone number. The AORN customer service telephone number should be listed as (303) 75 10337. Additionally, the meeting time for the Texas Council of Operating Room Nurses, listed on page 191 of the January 1994 issue of the Journal, is incorrect. The correct meeting time is 7 to 9 AM. The meeting date and time for the Florida Council of Operating Room Nurses, listed on page 190 of the January 1994 issue of the Journal, are incorrect. The correct date is Sunday, March 13, and the time is Noon to 1:30 PM.