In the last issue, I discussed how Ohio House Bill 216, effective on April 7, has expanded the authority and independence of nurse practitioners (APRNs or mid-levels) in response to the shortage of primary care physicians. In this issue, I want to push the boundaries further by considering a growing trend of physician practices offering clinical care by mid-level providers through telehealth and the potential effect on Collaborating Physicians.
The U.S. Department of Health & Human Services (HHS) defines telehealth as “the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care ... .”
Patients are finding on-demand telehealth virtual visits to be a more accessible, convenient, and cost-effective way to receive clinical care. This appeals to millennials and older populations alike. Likewise, practices are discovering that utilizing nurse practitioners to deliver care via telehealth can add to the bottom line, particularly since the HHS recognizes mid-level practitioners as being eligible to provide and receive payment for covered telehealth services.
With these potential opportunities come challenges that must be addressed to assure quality of care and to protect Collaborating Physicians against potential liability exposure. Ohio’s Nurse Practice Act (Revised Code 4723) sets forth the requirements for Standard Care Arrangements as well as the oversight responsibilities of the Collaborating Physician. Unfortunately, as is often the case, the law lags behind technology. The Nurse Practice Act does not specifically address telehealth. That’s the “bad news.” The “good news” is that the Nurse Practice Act and regulations do not prohibit an APRN from utilizing technology, including sophisticated visual and telecommunication devices, in providing clinical services to patients.
Whether providing care in-person or through technology, APRNs must act within the scope of their Standard Care Arrangements, subject to the oversight and supervision by the Collaborating Physician, in order to assure appropriate diagnosis and treatment of patients. That includes recognizing circumstances when technology or visual and telecommunication devices would adversely limit the APRN’s ability to meet the standard of care.
Nursing regulations require Standard Care Arrangements to include a section for incorporating new technology or procedures consistent with the APRN’s scope of practice. That requirement generally has been interpreted as applying to new treatment technology, but it is sufficiently broad to include telehealth, which could be addressed in the Standard Care Arrangement this way:
The Practice, APRN, and Collaborating Physician understand that APRN may provide clinical services on behalf of the Practice through telehealth technology within the scope of APRN’s license and subject to supervision and oversight by the Collaborating Physician. The Practice will provide training for the appropriate use and limitations of telehealth, including when the APRN should seek physician consultation or refer the patient for an in-person examination. The Practice may periodically adopt protocols outlining the APRN’s scope of practice through telehealth and evaluating the APRN’s performance.
Will using mid-levels to provide clinical services through telehealth increase the liability risk for Collaborating Physicians? I don’t think so. Technology is just a new iteration embracing the same fundamentals as when dealing in-person with patients. One insurance carrier, addressing potential malpractice risks associated with using mid-level providers in person and through telemedicine, has found that most claims occur when: (1) the mid-level acts outside the scope of licensure and Standard Care Arrangement; (2) the Collaborating Physician inadequately supervises the mid-level; (3) there is an absence of, or deviation from, clinical protocols; or (4) the mid-level provider fails or delays obtaining physician consultations or making referrals.
So long as the Standard Care Arrangement sets appropriate boundaries for mid-levels to deliver care by telehealth, subject to adequate supervision by Collaborating Physicians, this may present new opportunities for physician practices to consider.
Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs in Canton, OH, and a member of its Health & Medicine Practice Group. He is also the Managing Partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Feltes at JFeltes@BDBLAW.com.