January 28, 2021

QUESTION:        Some states have allowed nurse practitioners and physician assistants to practice “independently.”  If our hospital is located in one of these states and does not permit these types of practitioners to provide services independently, can this be considered discriminatory?


ANSWER:          Many hospitals are struggling with these types of issues because of the need for practitioners to provide services and the expanding role and state scope of practice laws for advanced practice providers.  For example, several years ago, Oregon passed a law allowing nurse practitioners to perform vasectomies.  The law instructs that nurse practitioners “may” perform these types of procedures.  The key is that most of these laws are permissive and not mandatory.  In other words, in Oregon you may permit nurse practitioners to perform this procedure in, for example, an outpatient department of your hospital but you do not have to allow it.  Some hospitals, especially those in rural areas where it is difficult to recruit practitioners, view these state scope of practice expansions with enthusiasm and perceive them as an opportunity to provide needed services to underserved populations.

Even though we are unaware of any cases successfully challenging a hospital’s decision to take a more restrictive approach than what is permitted under the state scope of practice laws/regulations (e.g., only permitting physicians to perform certain procedures even though state law permits nurse practitioners to provide the service), any decision to grant clinical privileges must take into account, among other things, the practitioner’s current competence to perform the privileges.  If a practitioner is unable to demonstrate current competence and meet any other threshold criteria, as specified in your delineation of privileges form, he or she would not be eligible for a grant of those privileges regardless of what that practitioner’s state scope of practice says.

By way of comparison, a medical license provides a physician with an almost unlimited scope of practice.  Yet routinely hospitals limit the scope of practice for physicians by the privileges that are granted and not granted.  The same would be true for advanced practice providers.

To help avoid a legal challenge, it’s a good idea to document the reasons underlying a decision to take a more restrictive approach to the grant of privileges.  For instance, there may not be a need in the community for the service because that need is already being met.  Your documentation should also reflect that conflicts of interest were appropriately managed and that the reasons were not based on discriminatory intent or purpose.

October 29, 2020

QUESTION:        I heard on a recent audio conference that nurse practitioners are not permitted to be listed on the emergency department call schedule.  But, it’s commonplace at our Hospital for the hospitalists to split call amongst the doctors and the nurse practitioners.  It’s been this way for years.  Did something change?


ANSWER:          The Emergency Medical Treatment and Active Labor Act (“EMTALA”) has always required that a physician be listed on the on-call roster for the emergency department (“ED”). Nurse practitioners, physician assistants, and other non-physicians do not suffice to satisfy this legal requirement.

That does not necessarily mean your hospital has been doing things wrong, however.  When the term “on call” is thrown around by those involved in hospital and medical staff compliance matters, sometimes things get jumbled up a bit – because that term can mean a number of things.

It is perfectly acceptable for nurse practitioners, physician assistants, and other non-physicians to be on call for their private group practice or for their employer (for example, physician assistants who are part of an employed or contracted hospitalist group that covers all patients admitted to the hospital).  These individuals likely are responding to calls about the practice’s patients (sometimes from the ED and sometimes from the floor) and they may even agree to take on some unassigned patients who present to the hospital, if no one else is available to assume those patients’ care.

This is different than the ED’s on-call roster.  The on-call roster is used by the hospital to ensure that services that are designed to meet the needs of the community are available within the ED.  This is the roster of physicians who respond in the event that a patient comes to the ED and is determined to be suffering from an emergency medical condition that requires stabilization.  In some (most) hospitals, if the patient lacks an existing patient-physician relationship with the type of specialist (e.g., cardiology, oral and maxillofacial trauma surgeon) whose services are required, the patient is considered “unassigned” and, by policy, the physician listed on the ED’s on-call roster must respond to the hospital to care for the patient (as requested by the ED physician).  In some hospitals, all patients who come to the ED after normal business hours are assigned to the ED’s on-call physician, though that is less commonly the policy.

To summarize: When an individual is covering their own practice’s patients, that person is not generally considered to be on the ED’s on-call roster.  As long as hospital policy allows it, a practice can choose any of its practitioners to respond to calls to the practice about their own patients.

For the ED roster that is designed with EMTALA compliance in mind, however, a physician must be listed (by name, not by group practice).  It is likely that this is the way your hospital has been managing things, since the requirement for a physician to be listed has not changed.  The confusion generated during the recent audio conference that you listened to probably lies in the ambiguity over the term “on-call roster.”

February 6, 2020

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QUESTION:      What do you recommend for the composition of the Credentials Committee and the terms for service for the members?
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ANSWER:         A Credentials Committee is best composed of experienced leaders, such as past chiefs of staff or other physicians who have had medical staff leadership experience.  Many Medical Staffs have representation from a variety of specialties to ensure that the committee has the expertise necessary to address difficult credentialing and privileging issues.  With the increasing number of advanced practice clinicians (e.g., nurse practitioners and physician assistants) providing services in hospitals, more and more Medical Staffs are appointing at least one advanced practice clinician to the Credentials Committee as a voting member and for that individual’s input and expertise on the topic of credentialing and privileging these providers.

Service on the Credentials Committee should be the primary medical staff obligation of the members and terms should be at least three years so that committee members have an opportunity to gain some experience and expertise in credentialing.  The terms should also be staggered so that there is always a repository of expertise on the committee.  This Credentials Committee’s primary responsibility is to review and make recommendations on applications for medical staff appointment and clinical privileges.  It can also oversee the development of threshold eligibility criteria for clinical privileges.

November 7, 2019

QUESTION:        Did CMS recently change its regulations on supervision of physician assistants?


ANSWER:          Yes.  CMS recently issued a final rule that revised its regulations on physician supervision.  This rule explains that CMS will largely defer to state law and state scope of practice rules for issues involving supervision of physician assistants (“PAs”).  In situations where there is no state law governing physician supervision of PA services, CMS will look for documentation of the PA’s scope of practice and the working relationships the PA has with supervising physicians (when furnishing professional services).

Crucially, you will need to check your state law to verify whether these changes will have a significant impact on your organization.

August 13, 2015

QUESTION:         We heard that a new exception in the proposed Stark rules would allow a hospital to provide “recruitment” assistance to a physician who wants to employ a physician assistant. Is this true?

ANSWER:           Yes. CMS recently proposed a number of changes to the Stark Regulations, among them, a new exception for payments made by a hospital to a physician to assist the physician in the employment of a “non-physician practitioner” in the geographic service area of the hospital. Under the proposed new exception, a “non-physician practitioner” includes physician assistants, nurse practitioners, clinical nurse specialists and certified nurse midwives. The non-physician practitioner must also be a bona fide employee of the physician, and the reason for employing the practitioner must be to provide primary care services to the patients of the physician. The proposed exception also includes a two-year limit on assistance and a cap on the amount given by the hospital to the physician.

However, please remember that these are proposed rules. The safest course of action is to not enter into these arrangements until the rules are final. But, if a hospital does not want to wait, it could follow the proposed rules. However, that is risky since the proposed rules may never become final, or may change before becoming final.

To help you stay on top of this very important development, join Horty Springer partners Dan Mulholland and Henry Casale as they discuss the proposed changes to the Stark Rules during a special audio conference entitled Stark Reality Check! — CMS Proposes New Stark Law Rules on August 17, 2015 at 1:00 pm ET.