Changes to Advanced Practice Nurse and Physician Assistant Laws

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Utilization of advanced practice nurses, such as nurse practitioners, and physician assistants has been increasing over the past few years.  Laws with respect to these health care providers have also changed, both on a Federal and State level.  On May 4th, Governor Mike Pence signed into Indiana law House Bill 1183 which included changes for both advanced practice nurses and physician assistants.  Further, on April 16th President Barack Obama signed into federal law H.R. 2 which included various changes for nurse practitioners.  These changes are outlined below.

Physician Assistant

Physicians assistants engage in a dependent practice with physicians in which the physician delegates authority to the physician assistant.  Nevertheless, House Bill 1183 substantially changes many requirements related to physician supervision.  These changes include that a supervising physician no longer is required to name each drug or drug classification in which the physician assistant has been delegated authority to prescribe, a supervising physician does not need to cosign any prescriptions ordered by a physician assistant, and patient encounters between a patient and a physician assistant should be reviewed by the supervising physician within ten (10) days as opposed to seventy-two (72) hours.  Another large change relates to chart reviews.  Previously a supervising physician had to review at least 25% of the physician assistant’s patient charts.  Now, this is required only in the first year of employment and thereafter the physician can determine a specific number of charts that needs to be reviewed.  Finally, a supervising physician can now supervise a maximum of four (4) physician assistants at any time as opposed to two (2).

Advanced Practice Nurses/Nurse Practitioners

An advanced practice nurse includes a nurse practitioner, nurse midwife, a clinical nurse specialist, or a certified registered nurse anesthetist.  Advanced practice nurses are independent members of the health care team that make independent decisions related to the health care of patients.  For advanced practice nurses that seek prescriptive authority, a collaborative agreement is required with a physician.  House Bill 1183 had one change that is applicable to both advanced practice nurses and physician assistants.  Both are now able to prescribe and treat patients with a Schedule III and Schedule IV controlled substance for the purpose of weight reduction or to control obesity.  Although advanced practice nurses have been able to prescribe Schedule II through IV controlled substances, they now can offer treatment for weight loss.  H.R. 2 now authorizes nurse practitioners to document the face-to-face encounter required for durable medical equipment orders.  Previously, a physician needed to be involved to document such an order.

These changes may have a significant impact on how your organization utilizes these healthcare professionals.  If you have any questions or concerns related to these recent changes in laws, or the utilization of these providers in your organization, please contact Alex T. Krouse at (574) 485-2003.

Medicare Releases Individual Prescriber Data

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On May 1, 2015, the Centers for Medicare & Medicaid Services (“CMS”) released Medicare Part D prescription drug data that individual physicians, nurse practitioners, physician assistants, and other health care providers prescribed in 2013. This release of data follows various releases aimed at creating more transparency within the health care. For example, the Sunshine Act released payment information between drug and medical device manufacturers to physicians and teaching hospitals. Further, CMS released payment data to physicians and other health care providers on April 9, 2014. Although this data is a push for more transparency, it could represent a significant risk to health care providers.

The data released, contains individual data for each prescriber and drug.  This amounts to more than one (1) million individual health care providers who prescribed approximately $103 billion in prescription drugs under the Part D program in 2013. CMS provided the following chart highlighting the higher number of prescribers by specialty:

Average Costs and Number of Unique Drug Products for Specialties with the Highest Number of Prescribers, 2013

Number of Prescribers
Average Total Costs
Cost per Claim
Average Number of Unique Drug Products Prescribed
Internal Medicine
Family Practice
Nurse Practitioner
Physician Assistant
Emergency Medicine
Organized Health Care Education/Training Program - Student

It should be cautioned that such data is not indicative of a specific providers prescribing patterns; however Medicare Part D equals billions per year in government reimbursements. Further, for providers or organizations that see a high proportion of Medicare patients, this data may be used in ways that could increase risk to your organization. This includes risks related to prescribing practices, forms of prescription fraud, or even technical non-compliance with prescribing documentation issues.

It is advised that providers and organizations should analyze this data carefully to ensure that any risks associated with this data being published are properly analyzed from both an operational and legal perspective.

If you have any questions or concerns related to the Medicare Part D program, or this recent release of data, please feel free to contact Robert A. Wade at (574) 485-2002 or Alex T. Krouse at (574) 485-2003.

New Guidance Issued for Health Care Boards Regarding Compliance Oversight

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Are hospital and health system boards aware of compliance within your organization?  On April 20th, the Office of Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”), in collaboration with various healthcare and legal compliance organizations, published a report advising health care organizations that compliance needs to be an integral issue for health care boards.  Specifically, HHS published the report titled, Practical Guidance for Health Care Governing Boards on Compliance Oversight (the “Report”).  The Report addressed various issues relating to a board’s oversight and review of compliance program functions.

The Report states that one of the first areas boards should focus on relates to understanding the actual expectations the government has with respect to board oversight of compliance program functions.  Although the Report notes that a board must make inquiries to ensure information and reporting systems exist, the board must also confirm that the reporting system is adequate to ensure compliance issues are presented to the board.  Further, the Report explains that boards must develop a formal plan to keep informed of regulatory and compliance changes. 

One method to ensure the board is able to analyze and understand compliance related issues is to utilize the expertise of others to assist in fulfilling this duty.  Specifically, the Report advises that an expert to the board can assist the board in identification of risk areas, provide insight into best practices in governance, and provide consultations on other substantive or investigative matters.  While there is no one-size fits all standard for health care organization boards, the Report indicates that boards have a responsibility to ensure they understand compliance functions, are aware of compliance issues within the organization, and receive expert advice to ensure the board can act upon those issues.

The Report also discusses various issues of which boards should be aware.  This includes the roles and relationships between the audit, compliance, and legal functions.  With respect to each of these areas, HHS believes health care boards should be able to evaluate the adequacy and performance of such functions on a periodic basis.  Further, boards are expected to set and enforce expectations related to receiving compliance information from various functions within an organization.  One issue that is stressed within the Report is the need for regular reports from an independent perspective.  Finally, the Report addresses the need for boards to understand active monitoring of risk areas as well as encouraging accountability and compliance as an enterprise-wide responsibility.

Krieg DeVault has significant experience in this area as Partner and Health Care Practice Group Leader Bob Wade is currently the Compliance Expert to the Board of Halifax Health, a 678-bed hospital system based in Daytona Beach, Florida. In March 2014, Halifax Health signed a Corporate Integrity Agreement (“CIA”) with the OIG as part of an $85 million settlement with the U.S. Department of Justice over alleged illegal contracts with physicians, that violated the Stark Law as well submitting false Medicare claims to the federal government. This settlement is the largest Stark Law settlement involving a hospital system to date.  Under their CIA, the OIG mandated a Compliance Expert to the Board.  This Report, and Bob Wade’s recent appointment, highlight that the OIG and HHS are insisting on enterprise-wide compliance from the board level.

If you have any questions or concerns related to the health care organization board compliance, or the Report, please feel free to contact Robert A. Wade at (574) 485-2002 or Alex T. Krouse at (574) 485-2003.