Advanced Practice Providers (APPs) are in demand more than ever, collaborating with physicians to manage the ever-growing complexities in patient care. The increasing reliance on APPs in both metropolitan and rural areas requires enhanced communication in practice groups and adherence to specific guidelines from CMS and state laws regarding rules for the APPs’ scope of practice and collaboration with physician groups. This article will focus on three APP roles – Physician Assistants (PAs), Certified Registered Nurse Anesthetists (CRNAs), and Certified Nurse-Midwives (CNMs).
Rules for Collaboration and Questions of Liability
Depending on the jurisdiction and practice area involved, the rules and regulations may have distinct differences in autonomy for an APP and responsibilities for the physician and APP working in collaboration with each other. For example, a prevailing theme is the requirement for the physician group to have direct knowledge of the APP’s education, knowledge, and skills to prevent the delegation of duties outside the scope of the APP’s experience level. When an APP and a physician enter into a collaborative or practice agreement, it is important to ensure teams are on the same page when interpreting the governing rules and how they should execute delegation and oversight. If the physician and APP are not on the same page, the chance of a breakdown in communication and medical error can correspondingly increase and result in potential liability to both the physician and APP.
Under certain state laws, the physician and APP may have differing levels of formality in the relationship. For example, in Michigan, Public Act 379 of 2016 addresses the rules for PAs and the specific criteria for a formal practice agreement. In Ohio, reference Chapter 4730 Physician Assistants and Section 4730.19 Supervision agreement approval procedure. These may require the agreement to be explicit regarding the physician’s and PA’s roles and responsibilities regarding communication, availability, and decision-making. The agreement must also address an alternative physician if the primary is unavailable in an emergency. Finally, and most importantly for liability purposes, the PA and physician must not include a task or responsibility the PA or physician does not possess the education, training, or skills necessary to perform.
When acting under a formal practice agreement, the PA will be responsible (and liable) for their decision-making and treatment of a patient. In complex cases, a failure to assess the skillset of an individual to handle a patient, practice area, or treatment protocol could trigger both direct and vicarious liability for all parties to the practice agreement (PA, physician, group/corporation) in the event of a medical error. From a potential liability perspective, if a physician, group/corporation cannot adequately communicate the limitations of scope of practice or supervision oversight responsibilities, the physician, group/corporation could also experience direct liability for that breakdown in communication.
In Michigan, CRNAs have a new scope of autonomy with a significant change in the law in July 2022. Michigan now allows CRNAs to make independent medical decisions regarding all areas of anesthesia care, subject to the CRNA’s education, licensure, and certification. As a result of these changes, not only do the responsibilities of CRNAs increase, but it is even more crucial that CRNAs adhere to associated ethical responsibilities and understand that accountability and liability for professional judgments and actions will not be relieved despite a physician’s order or institutional policies. CRNAs must still use their expertise and training to evaluate appropriate patient care. In addition, CRNAs must ensure that contractual agreements or practice agreements remain consistent with the changes in 2022 and acknowledge CRNAs’ responsibilities as primary in making professional judgments. Practice teams must ensure that CRNAs’ responsibilities are commensurate with their licensing, education, and training. In Ohio, CRNAs are licensed by the Ohio Board of Nursing as APRNs and must practice in supervision with a physician, dentist, or podiatrist when providing direct patient care. When administering anesthesia, the CRNA must be in the immediate presence of the physician, dentist, or podiatrist in accordance with section 4723.01(M) of the Ohio Revised Code.
Finally, CNMs in Michigan and Ohio provide a wide range of services, including well-women visits and family planning as well as labor & delivery and menopause. As part of this practice, CNMs must enter into collaborative agreements with a physician or physician group for these services. The collaborative agreement should address the roles and responsibilities of the CNM and adhere to state guidelines regarding when a high-risk patient must be referred to a physician, physician response to emergent care issues, and medication management. A physician providing treatment to a CNM patient is not liable for the acts or omissions of the CNM unless the physician is the proximate cause of injury. However, they may be named in a lawsuit, regardless.
An overarching concern in all of these collaborative relationships will continue to be medication management, particularly the prescribing of controlled substances. Though a PA and CRNA are permitted under state law to prescribe such substances, a CNM is not and is restricted to prescribing and administering only certain medications under state law. Due to this concern, the agreements between the APP and physician groups should address responsibility for medication management and how to audit and address issues of complex cases with potential prescribing issues. The physician may be liable if the PA does not have the applicable training or experience with a particular medication protocol. In addition, though a CRNA has obtained more expansive autonomy, the CRNA cannot practice in a free-standing pain management clinic without supervision. It must still be in a collaborative agreement with a physician who can provide emergent consultation as needed.
It is important to understand that although APPs continue to gain autonomy, a physician’s liability is not obviated by these changes. The responsibility of managing patient care to the skill level, education, and training of the APP and evaluation of case complexity is ongoing. It could create liability for the physician if ignored. The APP should also ensure that the physician group they are collaborating with is sufficiently engaged and has the right skills to facilitate practice decisions, provide emergent relief when needed, and respects the APP’s autonomy. With clear lines of responsibility and ongoing communication on patient issues, the collaboration can minimize exposure for both parties, increase access, and improve patient care.
If you are an employed provider of a healthcare system and have questions on this subject, please consult your organization’s risk management department for advisement as to system policy or protocol.