The Health Law Ticker

On September 29, 2020, California Governor Gavin Newsom signed Assembly Bill 890 into law, launching significant changes to the scope of practice for Nurse Practitioners (“NPs”) over the next few years.

Changes to Scope of Practice Effective in 2021

Effective January 1, 2021, NPs who meet certain education and training requirements will be able to perform certain functions without standardized procedures in specified healthcare settings where one or more physicians practice with the NP, such as a clinic, acute care hospital, state hospital, medical group practice and other limited settings.

The functions NPs will be allowed to perform without standardized procedures include:

• Conduct an advanced assessment
• Order, perform and interpret diagnostic procedures
• Establish primary and differential diagnoses
• Prescribe, order, administer, dispense, procure and furnish therapeutic measures
• Certify disability pursuant to Unemployment Insurance Code Section 2708, after performing a physical examination
• Delegate tasks to a medical assistant

The education and training requirements which an NP must meet in order to perform the above functions without standardized procedures will include:

• Passing a national nurse practitioner board certification examination and, if applicable, a supplemental examination
• Holding a certification as an NP from a national certifying body accredited by the National Commission for Certifying Agencies (“NCCA”) or the American Board of Nursing Specialties (“ABNS”) and recognized by the Board of Registered Nursing (“BRN”)
• Providing documentation that educational training was consistent with standards established by the BRN and any applicable regulations as they specifically relate to requirements for clinical practice hours (Online educational programs that do not include mandatory clinical hours will not meet this requirement)
• Completing a “transition to practice” period (clinical experience and mentorship provided to prepare a nurse practitioner to practice independently) in California of a minimum of three full-time equivalent years of practice or 4600 hours

Having already undergone extensive training, some NPs may already meet some of these requirements. However, no NP will be able to meet the “transition to practice” requirement until the BRN has defined the minimum standards by regulation. Therefore, it is unlikely any NP will be able to meet the requirements to practice without standardized procedures at the beginning of 2021, unless the BRN quickly promulgates these regulations.

Changes to Scope of Practice Effective 2023

As of January 1, 2023, NPs who hold an active certification issued by the BRN pursuant to Business and Professions Code Section 2837.104 will be able to perform the functions specified above without standardized procedures outside of a clinic, acute care hospital, state hospital, medical group practice and other limited settings.

Medical Staff Involvement

AB 890 also expands NPs’ stature with hospital medical staffs, making NPs “eligible to attend” meetings of their assigned department. However, they may not vote at the meeting unless the vote is regarding the determination of NP privileges with the organization, peer review of NP clinical practice, whether an NP’s employment is in the best interest of the communities served by a hospital (pursuant to Section 2400), or the vote is otherwise allowed by the applicable bylaws.

In addition, AB 890 states that NPs will become eligible for medical staff membership in 2023 and to vote at department meetings to which they are assigned. It is unclear how this will play out, considering California hospital licensure regulations currently restrict medical staff membership to physicians, podiatrists, dentists and clinical psychologists.

NPs Subject to Laws Regarding Self-Referral Prohibitions

AB 890 revised Business and Professions Code Section 650.01 to broaden the definition of “licensee” to include NPs practicing pursuant to the new expanded scope of practice laws, thus making this subset of NPs subject to the self-referral laws of California. There is no indication the federal government will follow suit in its so-called Stark Law.

New Duties for Peer Review Bodies Under Section 805

Peer review bodies, such as hospital medical staffs and some health plans and medical groups, have an obligation under Business and Professions Code Section 805.5 to report to state licensing agencies under certain circumstances. This includes when the peer review body takes or recommends certain action against a licentiate’s privileges or membership, if the action or recommendation is based on a “medical disciplinary cause or reason” (i.e., if it pertains to professional competence or conduct that is reasonably likely to pertain to patient safety or to the delivery of patient care). “Licentiate” under Section 805, which refers to subjects of an 850 report, has been redefined to include NPs practicing pursuant to the new expanded scope of practice laws.   

Peer review bodies also have an obligation pursuant to Section 805.5 to perform a query prior to granting privileges, in order to determine whether an 805 report has been filed about a licentiate. AB 890 revises Section 805.5 to require healthcare entities to perform such a query about all NPs. While a query about NPs who are not practicing pursuant to the expanded scope of practice laws are unlikely to yield any results since 805 reports are not required to be filed about these individuals, those with an obligation to query under Section 805.5 should conduct a query for all NPs as of January 1, 2021.

Corporate Practice of Medicine

Starting January 1, 2021, Business and Professions Code Section 2837.103 provides that entities where NPs can practice without standardized procedures “shall not interfere with, control, or otherwise direct the professional judgment of [such NPs] functioning pursuant to this section in a manner prohibited by [Business and Professions Code Section] 2400 or any other law.” Section 2400 provides that “[c]orporations and other artificial entities shall have no professional rights, privileges, or powers.” The statute reflects California’s policy against the corporate practice of medicine that prevents unlicensed persons from interfering with or influencing a physician’s professional judgment. Moving forward, under Section 2837.103, corporations will not be allowed to influence clinical judgment of NPs who can practice without standardized procedures, just as corporations may not influence a physician’s clinical judgment.

Furthermore, Business and Professions Code Section 2401 carves out numerous exceptions to the corporate practice of medicine doctrine to permit applicable entities to employ physicians. Similarly, effective January 1, 2023, Business and Professions Code Section 2837.104 also provides an exception for certain NPs who are employed pursuant to the exemptions in Section 2401. In other words, when an entity intends to employ NPs who are certified by the BRN under Section 2837.104 to provide clinical services without standardized procedures, this entity should consider the requirements set forth in Section 2401.