Keeping abreast of ever-changing nurse practitioner (NP) regulations is a fulltime job unto itself. While the majority of states have rolled out some level of independent practice authority for NPs, many of them aren’t clear on exactly what that means. As we discovered first-hand in states such as Colorado, despite having full practice authority, the medical board still claimed (in an email directly to our firm) that an NP must have a collaborating physician to operate a med spa, as the NP “cannot practice medicine.” Herein lies the problem. Regulations - printed in black and white - and the very governing bodies that enforce those regulations are not aligned. This is creating a compliance nightmare across the country, with misinformed NPs trying to operate within the confines of ambiguous state regulations. On more than one occasion, we have suggested to med spa and primary care NPs that, despite what your respective state regulations dictate, it may be best to align yourselves with some sort of collaborating physician. This is of course not always the case, however erring on the side of caution is a better option than the alternative.
Why do we take collaboration requirements so seriously? Well for one, the Office of the Inspector General (OIG) has ramped up enforcement action in a number of areas, from privacy to fraud and abuse claims (including improper billing), while state medical boards crack down on the unauthorized practice of medicine. The unauthorized practice of medicine is not limited to unlicensed individuals giving illegal botox injections, but rather includes licensed individuals (e.g. – NPs, PAs, and other non-physician providers) who may not be operating within the confines of the law because they lack proper physician oversight in their practice. Further adding to the complications, the American Association of Nurse Practitioners (AANP) reports that currently ten states limit the number of NPs with which a collaborating physician can work.[1] In a nation with a major access to care issue, one would think that state legislatures would be working towards reducing the amount of red tape for providers to get up and running and begin seeing patients. Sadly, in many states, it seems to be the opposite.
As noted above, while generally well-intended, NPs can find themselves caught in the crossfire for lacking a clear Collaboration Agreement with - or Delegation Agreement from - a licensed physician. In addition, a Business Associate Agreement (BAA) is needed if those parties are sharing protected health information (PHI) and not part of the same legal entity. If all these acronyms have your head spinning, you are not alone. Here at Marti Law Group, our role is to help NPs, nurse injectors, physician assistants (PAs), physicians, dentists and other healthcare providers to sort through the mayhem that lies within varying state statutes, case law and medical board opinions. If you are an NP or other licensed healthcare provider and looking to properly construct and operate your independent practice or med spa, or to collaborate with other medical professionals, give us a call at (860) 552-7770 or email at info@martilawgroup.com and let one of our experienced attorneys help you navigate the process.
[1] https://www.aanp.org/advocacy/advocacy-resource/state-issue-maps/limit-on-number-of-nurse-practitioners-a-physician-can-hold-a-collaborating-agreement-with