In this episode, we delve into the evolving landscape of Nurse Practitioner (NP) practice authority. We break down an NP’s scope of practice and share how NPs have gained increased independence in different states. Tune in for the three levels of supervision of an NP, the states who utilize each level and their requirements.
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Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto, legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal one two threes with ByrdAdatto. I’m your host Brad Adatto, with my co-host Michael Byrd.
Michael: Thanks, Brad. As a business and healthcare law firm, we meet a lot of interesting people and learn their amazing stories. Our clients commonly come to us with the latest word on the street that they heard from a friend. This season, we will talk about stories with a common legal urban legend and seek to either prove or disprove the legend. This season’s theme is Fake or Real.
Brad: Well, Michael, effective immediately, you need to start calling me Dr. Adatto from the day forward.
Brad: Well, that was rude. I mean, normally you at least give me some context.
Michael: Well, maybe you should have just said fake to keep it on theme. I don’t know. And I don’t want to confuse the audience, Brad, that they [00:01:00] think I’m speaking with your dad who’s actually a doctor in real life.
Brad: I know, but I didn’t say medical doctor, but I am a doctor.
Michael: Oh, okay. Well, you’re playing the old doctor in jurisprudence card. I see. Is that where you’re going with this one? Yes.
Brad: It actually seems appropriate to me.
Michael: Did you hear that? That was Pandora’s box opening. There’s nothing appropriate about you, Brad. You’re a 50 year old man stuck in the eighties, who acts like a 13 year old boy.
Brad: True. But so are you.
Michael: Well, that hurt. That’s true, but it hurt. Okay. Well, so why did you start with this whole Doctor Adatto business?
Brad: Well, several years ago I was practicing in New Orleans, and there’s attorney who had called the office and introduced himself as a doctor on the phone.
Michael: Well, tell me he was like a MD JD, like our partner Jeff Siegel.
Brad: Fake, no, he was not.
Michael: [00:02:00] Did he have a PhD, professor at law school or something like that?
Brad: Nope. He just plain JD like us and felt that lawyers should be called doctors.
Michael: Well, so did you call him doctor?
Brad: No. And many of my fellow Nola, New Orleans lawyers had conversations with him, and they’re also very confused when he’d call up and say he was a doctor.
Michael: Well, if he was our friend, we would’ve ruthlessly just destroyed him for that. I remember at my old firm, a new lawyer insisted on his first letter he sent to put Esquire after his name. And he took a while to live that one down. So, where are you going with all this?
Brad: Well, you know, it can be confusing the outside world when they hear the title “Doctor”, as most people do associate with being a medical doctor. And before I walked in today, I was reading this article in California about nursing practitioners who’ve earned a doctor of nursing. For those who don’t know, that’s the [00:03:00] highest degree available for nurses. And after attaining this degree, she introduced herself as doctor to her patients. She signed her name with doctor on the prefix listed on the website in her clinician jacket. And the California State prosecutors basically went after her and she had to pay a $20,000 civil fine for allegedly describing yourself as a doctor on the website, social media, et cetera.
Michael: Ouch. Well, I’m, I’m sure it has to do with the fact that under California law only physicians and surgeons can use the word doctor or the prefix Dr. so several other states regulate the use of the doctor title, but California is the strictest in the country.
Brad: Yeah, no doubt. There always have been the strictest. That is correct. And the prosecutor said that enforcing this restriction is necessary to protect the public from being misled. But after setting the case with the state, several nurses with doctorates of nursing sued the California Attorney General, the medical board, the nursing boards of California. And [00:04:00] they were – and these nurses with doctrines said they’re arguing that they should have the right to call themselves doctors, and the lawsuit seeks to permanently prevent the state from enforcing the law.
Michael: Well, as my freshman in high school, daughter Ellis would say, that sounds like some good tea. Whatever. This would be great for our podcast. What happened with this?
Brad: As of date, nothing’s gone on.
Michael: Oh, well that’s kind of boring. So why’d you bring that up?
Brad: Well, it actually goes to, there’s confusion sometimes when it comes to titles and authority, which leads us to today’s topic, fake or real, a NP has full practice authority.
Michael: Alright, Brad, well, let’s get started.
Brad: Cool. The main character in today’s story is a nurse practitioner who will call Thelma. And her good friend who’s an RN, will call her Louise, ran a med spa together in Arizona, and they called it the Thunderbird Med Spa. [00:05:00]
Michael: Brad, you do love your movies and I see that you’re trying to keep things fresh with a newer movie. I’m assuming you’re pulling today’s characters from the 1990s movie, Thelma and Louise, and I believe they were driving a Ford Thunderbird.
Brad: Wow. That is correct. And I also realized that I used a couple of vocabulary words there. For our audience members who don’t know, Michael, what is an NP and what is an RN.
Michael: A nurse practitioner or an NP that is a registered n nurse who’s acquired kind of the formal education, extended knowledge base and clinical skills beyond the registered nurse level to practice in an advanced role as direct healthcare providers. NPs are certified by a nationally recognized professional organizations, professional organizations, excuse me. RNs are registered nurses and RN is someone who has completed his or her educational training at an approved school of [00:06:00] professional nursing and is licensed by the state board of nursing in a particular state to engage in professional nursing. RNs are able to implement nursing interventions and to perform certain medical procedures when ordered and delegated by a physician or an advanced practitioner.
Brad: Yeah. I actually, it feels like a lot of information, but Michael, it’s important, the story. And Michael, for our audience members that don’t know, what is the main difference between your NPS and your RNs?
Michael: You mean, kind of take out the adult Charlie Brown, want-wah. So getting it down to practical, a nurse practitioner has an expanded scope of practice from an RN, and that expanded scope includes the ability to do an assessment and a diagnosis and treatment plan. And of course, there’s certain areas where the expanded ability to treat within their clinical category where they’ve gotten this specialization. RNs do not have this [00:07:00] expanded scope of practice.
Brad: All right. Perfect. Thanks for the context. So, back to our story. Thelma and Louise started out slow and gradually started growing the Thunderbird Med Spa. And with growth, they started having opportunities over Arizona and they opened other locations, but they started eyeing their border state California
Michael: Oh, crossing state lines. I’m sure they were aware that California laws are different than Arizona.
Brad: Yeah, sort of, and we’ll get around to that in a second.
Michael: Do I need to worry about that, Brad, that statement?
Brad: Let me continue, Michael and you judge. All right, so back to the story. Well, Thelma had a friend in California who was a medical doctor and reached out to see if he was interested in partnering with her in Louise, and opened a California version of the Thunderbird Med Spa. So Dr. JD thought it’d be great to partner together again.
Michael: Okay. Well, there’s a lot to unpack there, Brad. First, for the audience members who are confused by the name, I believe [00:08:00] JD was the name of the character played by Brad Pitt in Thelma and Louise. And it was the love interest of Thelma.
Brad: That’s correct.
Michael: Which is probably why this is one of your favorite movies that you used to watch. But not too subtle there, so we got that second. I think that you’re trying to work in the name Brad and JD in this podcast solely so that you can insert yourself as a character in the story today.
Brad: I mean, maybe.
Michael: And finally, relevant to actual knowledge it’s important for context to understand the corporate practice of medicine, which we’ve talked about in prior episodes. But in California they have the corporate practice of medicine. And the rule in California is that a physician has to own a business entity that’s practicing medicine, and that that entity can be co-owned by up to 49% by an allied health [00:09:00] professional. And so, it makes sense that the doctor would come into this for that purpose alone just to meet the ownership requirements in the state. So besides the ownership issue, was Dr. JD also going to be Thelma and Louise’s supervising physician?
Brad: Yeah, no. You see Michael in Arizona, in case you didn’t know this, nurse practitioners have full independent practice authority within the scope of practice. As such, Thelma is not required by law to have any supervision or written collaborative agreement between the physician and the NP, so that was actually never discussed.
Michael: Okay, Brad? Well, yes, I’m aware that’s the case in Arizona. You and I have been on stage before together talking about that.
Brad: Oh, you were there. Okay.
Michael: But I actually, Brad was concerned with California law where an NP must perform treatments pursuant to standardized procedures, [00:10:00] and in all instances, a physician’s required to supervise the NP in California.
Brad: Yeah. Riley, can you please rewind the tape from Michael? I don’t think his headphones are working or something because I already mentioned that Arizona nurse practitioners have full independent practice authority. So I don’t think you heard me correctly, Michael.
Michael: Yes Brad, I heard you and I get it. You’re trying to make some big overarching emphasized point here that when you cross state lines, you have to be compliant with the new state laws.
Brad: Well, Michael I didn’t know if you knew this, but California changed the law and NPs practicing California do not have to partner with the physician and do not have to have oversight of the state’s medical board anymore. NPs are now fully independent practitioners under their own umbrella. So they don’t need doctor’s oversight as such. They can practice independently if they want to.
Michael: Brad, you’re playing dumb for the audience, and the problem is that you’re super believable. Hopefully the internet does not [00:11:00] take that clip of your statement in isolation because the law is more complicated than this.
Brad: Okay. Yeah, yeah, yeah, because when I did get on a phone call with Dr. JD, I basically had to tell him the exact same thing. You see in California, they did pass a new law allowing NPs to become fully independent practitioner, but to be fully compliant, there are many actions that NP must take even to achieve this goal, and it’s a while out.
Michael: All right, you’re back on point, Brad. Good job. But why did Dr. JD call you in the first place?
Brad: Did I forget to mention that after California Thunderbird Med Spa was open, a complaint was filed with the medical and nursing board because Dr. JD was not providing any oversight of the NPs and RNs.
Michael: Yeah, Brad, you did in fact fail to mention that. Okay.
Brad: So let’s rewind just for a second. Once Thelma and Louise started the California Thunderbird Med Spa, they filed the exact same process they were using in Arizona. The only exception was, they did have Dr. JD correctly [00:12:00] co-own the facility.
Michael: Did Dr. JD provide services at the facility?
Brad: No. Dr. JD’s office was located in Santa Rosa, California. And the California Thunderbird Med Spa was located just outside of San Diego, California.
Michael: Okay, Brad, for those who don’t know California geography, those are at opposite ends of the state. I’m guessing that’s like a 10 hour drive from Northern California to Southern California between these locations. Tell me, did he ever visit the location?
Brad: Nope. In fact, the only time he actually met in person is when they started the “partnership discussions” over dinner in San Francisco. Otherwise, they were just FaceTiming or having calls or emails between each other.
Michael: So he never saw Thelma or Louise provide medical services much less step into the med spa. Correct.
Brad: Correct, you are listening, right? Oh, good job, Michael. Well, there was no oversight which might be one of the reasons [00:13:00] that a competitor most likely reported them.
Michael: Okay, well, that makes sense. And this sets up our broader myth across all states to address today, Brad, Fake or real, a NP has full practice authority.
Brad: Well, Michael, I’m going to answer that question after the commercial break.
Michael: Oh, you’re so mean.
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Brad: Welcome back to Legal one two threes with Bird. I’m your host Brad Adatto, with my co-host Michael Byrd. [00:14:00] Now Michael, this season’s theme is Fake or Real. We talked today about Dr. JD and his relationship with Thelma Louise and the Thunderbird Med Spa.
Michael: Yeah, Brad, I mean, we have a story centered around one of your classic favorite chick flicks from back in the day. But the broader story is this, the recap. Thelma and Louise are practitioners in Arizona. One’s an NP, one’s an RN, and they were doing their thing in Arizona, which has its own set of rules regarding the scope of practice in particular for nurse practitioners. They decided to cross state lines and go to California. And one of the things they did well is they recognized that they needed a partner with a doctor. And so they went to their old friend, Dr. Jd to co-own a business together. And because either their understanding of the way things [00:15:00] were in Arizona, or maybe because they had a misunderstanding of what the new law in California was they didn’t really have any oversight anything more with Dr. Jd. He lived in Northern California, they lived in Southern California and you got brought into the story when Dr. JD called because there was an investigation going on because of lack of supervision. And so let’s kind of talk a little bit, Brad, about NP scope of practice from a general perspective around the country.
Brad: Yeah. You know, Michael, as you mentioned, the first half of the show, NPs are subject to a continuum of regulations. I mean, all over the states, every single time’s going to be a little bit different to how they interact with the physicians. Sometimes they have written agreements, sometimes they can do without written agreements. But when an an agreement is required, some states treat practices and prescriptions independently. For example, Texas NPs have independence and [00:16:00] nursing practice, but not prescriptive authority. So, that means they have to have an agreement with the physician. Ultimately, Michael, the level of supervisions of an NP can be categorized really at two levels, supervised practices and collaborative practices.
Michael: Yeah. And so if you think of this, and if you’re thinking about this continuum that, Brad, you were just mentioning, thinking of it from supervised practice to collaborative practice, to full independence as kind of that range. And so a supervised practice is the most restrictive form of supervision required for a nurse practitioner. And the approach with a supervised practice is kind of characterized by a requirement of a written supervisory agreement or written protocol that sets the NPS permitted scope of practice by the physician, and sets the prescriptive authority by the physician, states that administer [00:17:00] kind of this supervised practice approach are in decline. There’s been a big movement for more independents. Despite this decline. Remaining states examples who utilize this practice include Oklahoma, and for now, Brad, California. As mentioned earlier in California, NPs are still required to have a standardized procedure that is developed and approved by the supervising physician.
Brad: Yeah. And once the subset of the supervised practice approach also requires approval of the relevant nursing board. So, for example, in Alabama and Georgia, an NP must file their credentials and certifications and demonstrate the capabilities prior to renting any medical services. However, it’s more common to only acquire the agreement be maintained at the practice site and available for review. These agreements often require the NP to practice as an employee of a physician or a healthcare facility. So, Michael, let’s talk about the next level, [00:18:00] which is the collaborative practice.
Michael: So we’re moving on that continuum towards independence. A collaborative practice approach does fill that middle ground between supervising independent practices. So, there is a great variety among collaborative practice approaches and states that have this kind of collaborative arrangement. More restrictive collaborative practice approaches border on looking like a supervised practice. While a super permissive collaborative practice approach can look more like an independent practice. Naturally, most collaborative practice arrangements exist somewhere in between, and so you can kind of think of it like a mentor relationship in these middle ground states.
Brad: Yeah. And that’s all good, understanding the distinguishing the difference between collateral practices. There are certain breakdowns, audience members, that you need to understand, and it kind of falls into a couple different buckets, and it’s either “and” “ors” here. The agreement needs to be in writing, the agreement needs to be [00:19:00] approved by a state board and various requirements regarding meetings with the supervising physician within a geographic location and formal chart reviews. And because this is variance requirements and numbers of distinguishing factors makes the collaborative practice the most fluid of these approaches. I’ll give another example, Michael. In Florida, the supervising physician cannot have more than four agreements at one time with NPs, while in Missouri, the collaborating physician and NP must be within 30 miles of each other.
Michael: Yeah. And audience members, the greater point here is understand that the supervision level is super state dependent. But that leads us to the separation of the NP and MD with independent and autonomous nurse practitioner practices.
Brad: And now we’re fast forwarding to where we’re moving [00:20:00] towards, and independent practice is the most recent development for the NP field. And it’s basically the way these different states have had to approach it is that they’ve looked at it from, you know, are they independent practices by virtue being licensed? Like, so you show up and you have a license as a nurse practitioner, or through time and experience, then over time you become independent? And how states adopt independent practices for nurse practitioners, the legislation can cause confusion, Michael, or what is the NP statutory scope of practice if it is adopted?
Michael: Well, give us an example.
Brad: For example, in some states, the governing body repeal the need for a written agreement. States that take this approach can create a vacuum of insufficient guidance, which can result in a friction between the physician and nurse practitioners as lines between the fields just become blurred. Wary of such issues, states have made the move to independent practice. More recently have provided more structured [00:21:00] statutory scope of practice. And I’ll give you an example in another state. In 2017, Illinois passed the legislation, which allowed NPs to apply for full practice authority, effective January 1st, 2018. So yay for NPs, they’re real excited. Unfortunately, there’s no corresponding administrative rules on the process to attain this independence. As a result, this set off a firestorm of NPs just starting their own independent practices in the state of Illinois, even without official guidance. And it was almost, really, almost two full years later that the administrative rules were filing released. So there’s a gap between statute being proved and the administrative body saying, well, this is how you become independent
Michael: And this is common. And people are so excited that they have this approved independence, yet there’s no, without this guidance, you don’t know. And there was a lot of nurse practitioners that were by jumping the gun, not [00:22:00] compliant. And you have other states, like right now with Florida, with their NP independence, and we talked a little bit about California, where you have this gap period before there’s clarity, and then you finally get the clarity. And just as an example, going back to Illinois what finally came out in these final rules required some extra things. It wasn’t just the fact that you could be a licensed NP. You had to have 250 hours of continuing education and training in the area of the NP certification. You had to have at least 4,000 hours of clinical experience in the area of their certification that is in collaboration with and certified by a physician.
Michael: And there was other requirements on top of these two. But the problem it created was that these, you know, additionally did not end up affecting the rules for ownership of [00:23:00] professional entities in Illinois. And so you have this gap to take the layers of challenges. You have a gap, law passes, people have no idea what it means, and they go full force ahead. And then you have all these rules that come in that provide some clarity that there are hoops to go through to apply for and become independent. And then there’s another obstacle in the sense that they don’t address ownership. And so, an NP cannot own or jointly own a medical practice with physicians. And so, there is a path where an NP can own a nurse practitioner professional practice that looks and feels a lot like a medical practice, but there are differences as far as who else can work in there and who are the players that can be delegated to. It creates a whole host of different issues.
Brad: Yeah. I mean, audience members, as you can tell, it gets [00:24:00] confusing real fast. This area law can be confusing only not only because the ownership statutes are not tied the NP scope of practice, but then you have other states that have passed independent practices for NPs. And they haven’t even made clear if an NP can actually own a medical clinic. However, in many states, the, the business code governing ownership of medical practice may require physician ownership or partial physician ownership, even in states where NPs are independent. To further confuse the issue, states like Ohio allow NPs to own a hundred percent of their own practice, but still require NPs to have written collaboration agreements with the practicing physician. As such, an entity wholly owned by NP may still be subject to supervision and prescriptive authority restrictions.
Michael: I’m getting dizzy, Brad. I guess we have gone most of the podcasts and you still haven’t answered the question. Brad, is it fake or real; [00:25:00] an NP has full practice authority?
Brad: Fake. Now, as the audience just heard, NPs can overextend their selves in their independence. And so, not all the states have adopted this same explanation, so at this time NPs do not have full practice authority in every single state. So, going with fake.
Michael: Alright, Brad, I think we’ve exhausted our brains on this topic. I know yours is for sure, and maybe the audience too. So, let’s circle back what happened with Dr. Jd, Thelma, Louise and the Thunderbird Med Spa?
Brad: Well, it’s a fair question. audience members, unfortunately, they’re still under investigation. They’ve taken any corrective actions since the complaint’s been filed, but the outcome of Thunderbird Med Spa is still has not [00:26:00] played out. I wonder if there will be a sequel, Michael.
Michael: Well, not if there’s anything like the actual Thelma and Louise movie. Brad, as I think about my final thoughts, today you wanted us to call you a doctor. You even compare yourself to Brad Pitt. Audience, don’t be like Brad. For an NP, all the hard work can mislead you on your level of practice authority. Even ego can get in the way to where you feel like you can call yourself a doctor because you’ve got that doctor of nursing. Or you feel like you’ve earned it through your advanced education. You still have to understand that each state has specific laws on your scope of practice. And it can vary as you balance from one state, to the other where you have maybe full [00:27:00] autonomy in one state, and then even full practice authority in another. And then you could go to another state where you have more strict supervised requirement.
Brad: Well done Dr. Byrd. And as Dr. Byrd always says, well audience members, that is all the time we have today. But next week we examine another myth. Michael, fake it real, at PA has full practice authority.
Outro: Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five-star rating and share with your friends. You can also sign up for the By Adatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast is not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation ByrdAdatto. The views expressed [00:28:00] by guests are their own, and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.