CLIENT ADVISORY: Understanding the New “Autonomous Practice” Option for Nurse Practitioners

The passage of Virginia General Assembly House Bill 793 (HB 793) authorized a new option for eligible nurse practitioners to practice without a practice agreement.[1] HB 793 amends Va. Code § 54.1-2957, which governs the licensure and practice of nurse practitioners in Virginia.[2] The Boards of Medicine and Nursing have introduced draft regulations to implement the new law that will be finalized in the next few months.

General Provisions

Previously, nurse practitioners were required to practice only as part of a patient care team and maintain appropriate collaboration and consultation with at least one patient care team physician via a written or electronic practice agreement.[3]

HB 793 eliminates this practice agreement requirement for licensed nurse practitioners who have completed the equivalent of at least five years of full-time clinical experience and submitted to the Boards of Medicine and Nursing an attestation from their patient care team physician.[4] This new option to practice without a practice agreement is called “autonomous practice.”

Provisions Not Changed by HB 793

HB 793 makes no changes to the licensure and practice of nurse practitioners who do not meet the requirements to qualify for autonomous practice. Nurse practitioners who have not practiced full-time for at least five years and/or who do not meet the attestation requirement are still required to practice with a practice agreement.[5]

There are also no changes for Certified Registered Nurse Anesthetists (CRNAs) or certified nurse midwives (CNMs). CRNAs and CNMs are still required to practice under the supervision of a licensed doctor of medicine, osteopathy, podiatry, or dentistry; and in consultation with a licensed physician in accordance with a practice agreement, respectively.[6]

Importantly, HB 793 does not limit the ability of employers or health care systems to require a practice agreement for their nurse practitioners. Notwithstanding the Boards’ issuance of an autonomous practice license, an employer may still require a nurse practitioner to practice with a practice agreement in certain or all settings.

Process for Obtaining Autonomous Practice Licensure

A licensed nurse practitioner who has (1) completed the equivalent of five years of full-time clinical experience and (2) submitted an attestation from his or her patient care team physician and a fee to the Boards of Medicine and Nursing is not required to practice pursuant to a practice agreement.[7] The attestation submitted to the Boards must state:

  1. 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;
  2. 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
  3. The period of time for which the patient care team physician practiced with the nurse practitioner under such practice agreement.[8]

Following the submission of such attestation, the Boards will jointly review and verify that the nurse practitioner satisfies the requirements of HB 793. If the requirements are satisfied, the Boards will issue a license to the nurse practitioner confirming authorization to practice without a practice agreement. Currently, the draft regulations provide that a nurse practitioner approved for autonomous practice will be issued prescriptive authority without being limited to categories of drugs specified in a practice agreement.

Nurse practitioners unable to obtain attestation may submit to the Boards other evidence that the autonomous practice requirements have been met. Nurse practitioners who have worked for at least a five-year period under multiple patient care team physicians may submit multiple attestations for the Boards to determine whether the equivalent of five years of full-time clinical experience has been completed. The ability to obtain an autonomous practice license is also retroactive and nurse practitioners may count their time served on patient care teams before July 1, 2018 toward their five years’ experience prerequisite.

Once licensed for autonomous practice, a nurse practitioner shall:

  1. Only practice within the scope of his or her clinical and professional training and limits of his or her knowledge and experience and consistent with the applicable standards of care;
  2. Consult and collaborate with other health care providers based on the clinical conditions of the patient to whom health care is provided; AND
  3. Establish a plan for referral of complex medical cases and emergencies to physicians or other appropriate health care providers.[9]

A nurse practitioner practicing without a practice agreement pursuant to HB 793 shall also obtain and maintain coverage for professional liability insurance with limits equal to the current limitation on damages under Va. Code § 8.01-581.15.[10] Although advisable for all independent practitioners, nurse practitioners in autonomous practice would be the only practitioners presumably required to have professional liability insurance up to the cap.

Billing for Nurse Practitioner Services: HB 793 and CMS Regulations

For Medicare Part B coverage of nurse practitioners’ services, the nurse practitioner must be a registered professional nurse who is authorized by the state in which the services are furnished to practice as a nurse practitioner in accordance with state law.[11] Medicare Part B covers nurse practitioners’ services furnished in all settings if the nurse practitioner is legally authorized to perform them in the state in which they are performed and he or she performs them while working in collaboration with a physician. Collaboration is where a nurse practitioner works with a physician within the scope of the practitioner’s expertise, with direction and supervision as provided for in jointly developed guidelines or other mechanisms as provided by state law.

Next Steps: Draft Regulations and Request for Comment

HB 793 requires the Boards of Medicine and Nursing jointly promulgate regulations governing the practice of nurse practitioners without a practice agreement. In addition, the legislation requires that, by November 2020, the Department of Health Professions establish a process to include information about nurse practitioners practicing autonomously in the online Practitioner Profile maintained by the Department of Health Professions, and, by November 2021, report data and information to the General Assembly on number of nurse practitioners taking advantage of the new law and associated disciplinary actions.

In accordance with the above, the Boards of Medicine and Nursing have drafted proposed regulations governing autonomous practice for nurse practitioners, amending the Virginia Administrative Code at 18VAC90-30-10 et seq.[12] The draft regulations would define “autonomous practice” as practice in a category in which a nurse practitioner is certified and licensed without a written or electronic practice agreement with a patient care team physician in accordance with current rules.

The draft regulations set the autonomous practice attestation fee at $100 and offer a new provision at 18VAC90-30-86 establishing more specifics for autonomous practice and reiterating what is required under Va. Code § 54.1-2957.

The Boards of Medicine and Nursing have opened a public comment period on the draft regulations that closes on June 21, 2018. The Board of Nursing will consider the draft regulations on July 17, 2018, and the Board of Medicine will consider them on August 3, 2018. The Boards will be adopting emergency regulations in order to comply with the bill’s requirement that regulations be effective within 280 days of enactment of the legislation.

The draft regulations may be viewed at http://leg1.state.va.us/000/lst/r1265304.HTM. Comment on the draft regulations may be posted in a Public Comment Forum on the Virginia Regulatory Town Hall at http://townhall.virginia.gov/L/comments.cfm?generalnoticeid=833 or sent to elaine.yeatts@dhp.virginia.gov.

Conclusion

Nurse practitioners currently licensed in Virginia and health care organizations that currently employ or wish to employ nurse practitioners involved in autonomous practice should review the new law and review the draft regulations governing the autonomous practice of nurse practitioners. While the new law provides additional opportunities for nurse practitioners to practice without a practice agreement, careful attention must be given to the implementation of the new law over the coming months and years. For example, an application process will need to be implemented to ensure timely review and approval of attestations.

Should you or your organization have questions about the new law or need assistance in commenting on the proposed regulations, please contact Peter Mellette (Peter@mellettepc.com) or Nathan Mortier (nathan@mellettepc.com).

Mellette PC notes with appreciation the assistance of Gabrielle Eriquez (William & Mary Law class of 2019) in the preparation of this advisory.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. 

[1] https://lis.virginia.gov/cgi-bin/legp604.exe?181+sum+HB793

[2] Id.

[3] Va. Code § 54.1-2957(C)

[4] Va. Code § 54.1-2957(I)

[5] Va. Code § 54.1-2957(C)

[6] Va. Code § 54.1-2957(C); (H)

[7] https://lis.virginia.gov/cgi-bin/legp604.exe?181+sum+HB793

[8] Va. Code § 54.1-2957(I)

[9] Id.

[10] Id.

[11] 42 C.F.R. § 410.75

[12] http://leg1.state.va.us/000/lst/r1265304.HTM

Categories: Client Advisory