If At First You Don’t Succeed: After Years of Rejection, California Nurse Practitioners Have a Path to Independent Practice

California Governor Gavin Newsom has signed Assembly Bill 890 (AB 890), opening the door to widespread changes in healthcare delivery over the next several years. AB 890 amends the Nursing Practice Act and other laws found in the Business and Professions Code, broadening the nurse practitioner (NP) scope of practice and allowing for greater NP independence (all statutory references in this article are to the California Business and Professions Code).

California Nurse Practitioners Have Not Had an Independent Scope of Practice

Under existing California law, NPs have the same scope of practice as those registered nurses without NP certification. This means they must rely on “standardized procedures” to perform functions that cross into the practice of medicine. Developed collaboratively at the organized health care system where the NP practices, the standardized procedures specify, among other things, which functions the NP may perform and under what circumstances, the requirements the NP must follow, and the level of physician supervision required. Because of the physician supervision requirement, California NPs are not “independent” practitioners.

Nurse Practitioners Who Meet Specified Qualifications Can Have A More Independent Scope of Practice as of January 1, 2021 – Sort Of

Effective January 1, 2021, NPs who meet certain education and practice requirements detailed in the new Section 2837.103 may perform several medical functions without standardized procedures. This practice without standardized procedures is limited to specific healthcare settings where one or more physicians practice with the NP, including clinics, health facilities (except correctional treatment centers and state hospitals), medical groups, medical foundations, home health agencies, and hospice facilities. Functions that qualified NPs can perform without standardized procedures will include conducting an advanced assessment; ordering, performing, and interpreting diagnostic procedures; establishing primary and differential diagnoses; and prescribing, ordering, and administering certain therapeutic measures. The NP must still refer a patient to a physician or other licensed healthcare provider if a situation or condition is beyond the NP’s education and training.

Notably, one of the practice requirements to qualify for this expanded scope is the completion of a “transition to practice” in California of a minimum of three years of practice or 4600 hours. Section 2837.101 defines “transition to practice” as “additional clinical experience and mentorship provided to prepare a nurse practitioner to practice independently.” The statute requires the Board of Registered Nursing (BRN) to define by regulation minimum standards for a transition to practice, and this may include experience obtained before January 1, 2021. However, it is questionable whether the BRN will be able to promulgate and finalize those regulations prior to January 1, 2021. This means that even after the law goes into effect, until the BRN defines the minimum transition-to-practice standards, no NP can meet the qualifications for the expanded scope of practice. No NP, physician, or health care entity should allow NPs to practice under the expanded scope of practice and without standardized procedures until the BRN regulations are in effect and the NP can show they meet the standards.

Further Expansion of Nurse Practitioner Practice on January 1, 2023

NP practice expands further on January 1, 2023, when the BRN may issue a new certification to NPs who meet additional requirements detailed in Sections 2837.103 and 2837.104. Certification will allow the NP to perform the same medical functions described in Section 2837.103 without standardized procedures, but also outside of the limited healthcare settings listed above and without the need for a physician to practice with the NP. The NP must still consult and collaborate with other healing arts providers based on the clinical condition of the patient, and physician consultation must be obtained under specific circumstances set forth in the statute. The NP must also establish a plan for referral of complex medical cases and emergencies to a physician.

Reference to Section 2400

Effective January 1, 2021, Section 2837.103 provides that those entities where NPs can practice with the expanded scope of practice “shall not interfere with, control, or otherwise direct the professional judgment of a nurse practitioner functioning pursuant to this section in a manner prohibited by [Business and Professions Code] Section 2400.” Section 2400 is commonly known as the statute that bans the corporate practice of medicine and prohibits corporations and other artificial legal entities from having professional rights. Just as corporations may not influence a physician’s clinical judgment, corporations also must not influence an NP’s clinical judgment.

Section 2837.104 then goes further, mirroring Section 2400 and providing that, for purposes of this section, “corporations and other artificial legal entities shall have no professional rights, privileges, or powers.” The statute provides an exception for when the NP is employed pursuant to the exemptions in Section 2401. Therefore, it appears that as of January 1, 2023, artificial legal entities will be limited in their ability to employ NPs to provide clinical services within the new NP scope of practice if the NPs are certified by the BRN pursuant to Section 2837.104.

Standardized Procedures Are Still Required For Those Nurse Practitioners Who Do Not Qualify for the Expanded Scope of Practice

NPs, physicians, and healthcare organizations must be aware that the new law does not affect the standardized procedure requirements for NPs who do not meet the additional education, practice, and certification requirements set forth in AB 890. The law also does not affect the level of physician supervision in those standardized procedures. Therefore, NPs, their supervising physicians, and healthcare organizations should be extremely diligent in determining whether or not an NP meets the required qualifications before allowing the expanded scope of practice without standardized procedures. Failure to do so could lead to allegations of the NP practicing outside his or her scope of practice, and practicing medicine without a license, aided and abetted by the physician and health care organization.

Nurse Practitioners, Welcome to Section 805

Business and Professions Code Section 805 requires peer review bodies, such as hospital medical staffs, to file reports about certain actions affecting the employment, membership, or privileges of health care professionals included in the statutory definition of “licentiate.” That definition did not include NPs – until now. Under AB 890, as of January 1, 2021, “licentiate” will include NPs who are practicing pursuant to the new scope of practice defined in AB 890. This means peer review bodies will be required to file 805 reports to the BRN for certain actions taken against those NPs’ employment, membership, and privileges. Importantly, the definition is limited to the NPs who practice under the new scope and does not include those who still practice pursuant to standardized procedures. So whenever a peer review body takes an action against an NP, it should carefully determine whether or not that NP is a “licentiate.”

Although the requirement to report NPs is new, the list of reportable events has not changed. Further, the definition of “licentiate” in Business and Professions Code section 809, which defines certain hearing rights, also has not changed – meaning NPs, even if reported to the BRN, are not entitled to 809 hearing rights.

In a related change, AB 890 amends Section 805.5, and requires those entities that already are required to query the licensing agencies prior to granting privileges to physicians, psychologists, podiatrists, and dentists to now query the BRN to determine whether any 805 reports have been filed against an NP applying for privileges. Importantly, unlike the definition of “licentiate,” this requirement is not limited to NPs practicing under the expanded scope – this change applies to all NPs. Facilities and other entities subject to 805.5’s requirements should adapt their credentialing policies to add this step to their NP credentialing processes as of January 1, 2021.

Nurse Practitioners Will Be Eligible for Medical Staff Membership

The new law also opens the medical staff’s doors – a little at a time – to NPs. As of January 1, 2021, NPs who meet the qualifications to practice under the new scope “shall be eligible to serve on medical staff and hospital committees” and eligible to attend department meetings, although the NP’s ability to vote at meetings is limited to certain specified matters relating to NP practice or as otherwise allowed by the medical staff bylaws. Beginning January 1, 2023, NPs who meet the expanded qualifications developed by the BRN “shall be eligible for membership of an organized medical staff” and may “vote at meetings of the department to which the nurse practitioners are assigned.”

What does this mean for medical staffs? Current California hospital licensing regulations limit medical staff membership to physicians, dentists, podiatrists, and clinical psychologists. Does AB 890 (which is not a hospital licensing law) supersede the existing regulation? If so, does the wording – “shall be eligible” – require medical staffs to allow NPs who meet the statutory qualifications to apply for membership? The mandatory nature of the language suggests that the answer is “yes;” however, it is likely that there will be further wrangling on this issue before 2023 rolls around.

Nurse Practitioners Subject To California’s Self-Referral Prohibition

The broadening NPs’ practice also includes broadening their liability. California’s law prohibiting self-referral, Section 650.01, will include NPs who practice under the expanded scope, making them punishable for violations as of January 1, 2021.

More Will Come

AB 890 is the culmination of years of attempts to create an independent scope of practice for NPs. It was opposed by several physician groups, supported by several nursing groups, and ultimately may owe its success to the pandemic highlighting the need for greater access to care. This, though, is not the end to the development of an NP standard of care. The law requires the BRN to create new regulations and standards, which likely will be closely scrutinized by all interested stakeholders.