By W. Scott Johnson
The 2018 session of the Virginia General Assembly saw passage of House Bill 793, patroned by Del. Roxann Robinson, R-Chesterfield, which will authorize a pathway for certain nurse practitioners to practice without a practice agreement. This arrangement also is known as “autonomous practice.”
Law before July 1, 2018
Since 2012, nurse practitioners have been required to practice as part of a “patient care team” 1 with a “patient care team physician” 2 as evidenced by a “practice agreement,” maintained either in writing or electronically. 3
Licensure of nurse practitioners currently is overseen jointly by select members of the Board of Medicine and Board of Nursing (Boards).4
Nurse practitioners are licensed in one of 10 categories that are set forth in regulation.5
It is important to note that HB 793 made no changes to patient care team requirements for nurse practitioners who have not met the requirements to practice without a practice agreement (i.e., practiced less than five years, or who chose not to obtain licensure for autonomous practice).
New Law After July 1, 2018
As introduced, HB 793 would have enabled nurse practitioners to practice without a practice agreement after completing only six months of practice. As amended and passed, HB 793 will enable nurse practitioners, other than Certified Nurse Midwifes (CNMs) and Certified Registered Nurse Anesthetists (CRNAs), who have obtained the equivalent of at least five years of full-time clinical experience, to practice without a written or electronic practice agreement, if certain conditions are met.
HB 793 does not contain any changes for nurse practitioners licensed in the category of CNM or CRNA. Specifically, CNMs are still required to practice “in consultation with a licensed physician in accordance with a practice agreement between the nurse practitioner and the licensed physician.” 6 Similarly, licensed CRNAs are still required to “practice under the supervision of a licensed doctor of medicine, osteopathy, podiatry or dentistry.” 7
A nurse practitioner may obtain an attestation form executed by the patient care team physician stating:
“[i] that the patient care team physician has served as a patient care team physician on a patient care team with the nurse practitioner pursuant to a practice agreement meeting the requirements of this section and § 54.1-2957.01 [prescriptive authority];[ii] that while a party to such practice agreement, the patient care team physician routinely practiced with a patient population and in a practice area included within the category for which the nurse practitioner was certified and licensed; and [iii] the period of time for which a patient care team physician practiced with the nurse practitioner under such a practice agreement.” 8
Joint Boards process
The nurse practitioner may submit the attestation to the Boards with an application fee. The Boards will then review and verify that the nurse practitioner satisfies the requirements of the new legislation and issue a license to the nurse practitioner confirming authorization to practice without a practice agreement.
In the event a nurse practitioner is unable to obtain an attestation (i.e., death or disability of a physician), the Boards are authorized to accept other evidence demonstrating the new requirements have been met.9 Similarly, if a nurse practitioner has worked for a five-year period with multiple patient care team physicians, the Boards may consider multiple attestations to determine if the equivalent of five-year, full-time clinical experience has been satisfied.
Requirements for autonomous practice
A nurse practitioner licensed by the Boards to practice without an agreement must meet the following statutory requirements.
Specifically, a nurse practitioner:
“[a] shall only practice within the scope of his clinical and professional training and limits of his knowledge and experience and consistent with the applicable standards of care,[b] shall consult and collaborate with other health care providers based on the clinical conditions of the patient to whom health care is provided, and [c] shall establish a plan for referral of complex medical cases and emergencies to physicians or other appropriate health care providers” 10
In addition, a nurse practitioner who is licensed for autonomous practice is required to obtain and maintain professional liability insurance coverage with limits equal to the medical malpractice cap, pursuant to Virginia Code § 8.01-581.15.
Decisions on practice agreements
The General Assembly did not limit the ability of employers or healthcare systems to require a practice agreement in all or certain settings notwithstanding Board issuance of a license for Autonomous Practice. For example, if an employer or healthcare system decides that practice agreements are not required in an inpatient setting, but are required in all outpatient or clinic settings, the legislation would not prohibit implementation of such a requirement.
What is next
Three enactment clauses contained in the legislation direct additional steps.
First, the Boards are in the process of promulgating emergency regulations to implement the new legislation. 11 It is anticipated that the regulations will become effective in January 2019, enabling the Boards to receive attestations and requests for licensure to practice autonomously. The regulations must be adopted, both by the Board of Medicine and Board of Nursing.
The Department of Health Professions shall, by Nov. 1, 2020, report a process to the General Assembly regarding which nurse practitioners, licensed to practice without a practice agreement, can be included in the online practitioner profile. Currently, the practitioner profile is available to the public to obtain information on all physicians licensed by the Board of Medicine.
The Boards are required to report to the General Assembly by Nov. 1, 2021, on “the geographic and specialty areas in which nurse practitioners are practicing without a practice agreement, and any complaints or disciplinary actions taken against such nurse practitioners.” This will enable an analysis of how many nurse practitioners serve in medically underserved areas of the Commonwealth.
Finally, the Boards are to make recommendations or modifications to the requirements of the new legislation, including modifications to the clinical experience requirements that were passed during the 2018 Session.
The ability of nurse practitioners to obtain an attestation confirming the equivalent of five years of full-time clinical experience is retroactive. This will enable nurse practitioners to count time served on patient care teams before the regulations become effective toward that pre-requisite five years of experience. While it is estimated that over one half of the nurse practitioners currently licensed in the Commonwealth may be eligible to seek licensure to practice without a practice agreement, when the regulations become effective, it will be interesting to see how many nurse practitioners avail themselves of this opportunity or how many seek licensure to practice autonomously, yet not change their employment setting.
1 § 54.1-2900 “patient care team” to mean a “multidisciplinary team of healthcare providers actively functioning as a unit with a management leadership of one or more patient care team physicians. . . .”
2 § 54.1-2900 “patient care team physician” requires a physician to be actively licensed in the Commonwealth of Virginia, regularly practice medicine in the Commonwealth, and to provide “management and leadership in the care of patients as part of the patient care team.”
3 § 54.1-2957
4 § 54.1-2957
5 18 VAC 90-30-70
6 § 54.1-2957[H]
7 § 54.1-2957[C]
8 § 54.1-2957(I)
9 § 54.1-2957(I)
10 § 54.1-2957(I)
11 Emergency regulations are to be effective within 280 days of the passage of the new Act.
Scott Johnson practices healthcare law with Hancock Daniel & Johnson in Richmond.