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APRN FAQ on the new 2022 Kansas statute changes

Introduction

With the passage of House Bill 2279 by the 2022 Kansas Legislature there is a lot of confusion regarding this new law regarding Advanced Practice Registered Nurses (APRNs). To address the most common questions we receive, we have started this Frequently Asked Questions resource at www.kmsonline.org/APRN. It will be a living document as circumstances develop. 

When does the new APRN law take effect?

 Q1: When does the new law take effect, and when are the regulations that implement the new changes in law expected? 

A: The new law takes effect July 1, 2022. The temporary regulations implementing those changes have not yet been made public by the Kansas State Board of Nursing (KSBN), and unfortunately there isn’t a public comment period required on the temporary regulations. So, it is quite likely that the temporary regulations will take effect on July 1, exactly as they will be proposed by the KSBN, with no opportunity for public input. However, the KSBN will then be required to propose permanent regulations in the next few months, which will be the first time that interested parties, including KMS, will have the opportunity to provide formal comments on whether the KSBN’s regulations are consistent with the statutory changes or exceed what was authorized by the Legislature. 

Can APRNs now practice independently?

 Q2:  Can an ARPN now practice independently and, if so, are there any limitations on what they can do? 

A: Yes. Actually, APRNs have always been able to practice independently, but without a physician-authorized prescribing protocol or a collaborative practice agreement, their practices were very limited in scope. The recent change did eliminate the mandatory requirement of a physician-authorized prescribing protocol, so APRNs will be able to prescribe drugs (including controlled substances) and durable medical equipment in their practice without having to obtain a written protocol with a physician. The only limitation on prescribing is that APRNs cannot prescribe any drug intended to cause an abortion. The legislation does not explicitly authorize APRNs to perform any other services that constitute the practice of medicine and surgery. This point is likely to be controversial and a focus of considerable attention in the public hearing process.

Can I still enforce a Collaborative Practice Agreement?

 Q3: My legal counsel says that I can no longer enforce a Collaborative Practice Agreement (CPA) because of the new APRN law. Can I still require a CPA or other employment agreement for APRNs in my practice?

A:  The new law does not prohibit collaborative practice agreements, prescribing protocols, or any other formal practice agreements. It only eliminated the requirement of a prescribing protocol. There is nothing in the law that would prevent an APRN from entering into a collaborative practice or other practice agreement with a physician, a physician clinic, hospital, or other health care facility. Parties have a right to enter into such contractual arrangements with anyone they employ, including an APRN. That employment arrangement can utilize a collaborative practice agreement; employment agreement or other practice agreements; written protocols or other formal policies that set out the clinical limitations, scope of practice, terms and conditions of the APRN’s employment, or contractual relationship with the practice or facility.

Can I still delegate authority to an APRN?

Q4: Under the new law, can a physician still supervise or delegate authority to an APRN? How does the new law affect physician-APRN relationships in hospitals or other health care facilities? 

A: Consistent with current practice, a physician may still provide direction, supervision, or delegation of authority to perform acts that constitute the practice of medicine and surgery to an APRN, such as ordering tests, imaging, procedures, or other health care services. All clinical facilities — including physician clinics, hospitals, or other health care facilities — should consider reviewing and establishing clinical policies that identify those services that will continue to require physician direction, supervision, or delegation of authority to an APRN, and those services that the APRN can provide independently, consistent with the facility’s responsibilities to its patients (see Q5 below). 

What does the new law allow APRNs to do without physician oversight?

Q5: Does the legislation allow APRNs to diagnose, treat, and prescribe without any physician direction or oversight? 

A. Prior to passage of HB 2279, Kansas law required physician involvement in the form of a collaborative practice agreement (CPA) in order for an APRN to diagnose, treat, or prescribe. The only change authorized by HB 2279 was specifically limited to the requirement that — in order to prescribe drugs — an APRN must enter into a written prescribing protocol with a physician. That requirement was the only element which was eliminated. The legislation was silent on the broader issue of collaborative practice agreements, and there was nothing in the legislation that eliminated (or prohibited) them.    

The legislation also amended a key provision of the nurse practice act which relates to APRN practice. In the section directing the Kansas State Board of Nursing to adopt regulations relating to APRN practice (K.S.A. 65-1130, subsection (c)), the legislature made it clear that the regulations must be consistent with the nurse practice act. The nurse practice act at K.S.A. 65-1113 subsection (b) defines “diagnosis” in the context of nursing practice means “that identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen and shall be construed as distinct from a medical diagnosis”.  Additionally, the nurse practice act defines “treatment” as “the selection and performance of those therapeutic measures essential to effective execution and management of the nursing regimen, and any prescribed medical regimen [emphasis added].  

In other words, the nurse practice act still clearly distinguishes between the practice of nursing and the practice of medicine, and — with the exception of prescribing by APRNs — nothing in HB 2279 changes that distinction. For clinics, hospitals, or other health care facilities that require APRNs to have a CPA that sets forth practice parameters including scope of practice, supervision or consultation requirements, signature requirements, record review, consultation requirements, etc. — particularly as it relates to diagnosing or treating patients — it may be prudent to wait to make other changes until the permanent regulations have been promulgated and approved later this year.  

I am still liable for APRNs that I employ in my practice?

Q6: Am I still liable for the actions of the APRNs that I employ in my practice?

A. If you or your practice employ, or contract with, an APRN you are most likely going to have some legal responsibility for the care they provide your patients, unless there are mitigating circumstances, which would be very fact-dependent. 

Do my APRNs have to have their own malpractice coverage?

Q7: Do my employed APRNs have to have their own medical malpractice insurance policy, or can I continue to cover them in my corporation’s policy?

A. You will have a choice, just as you do currently. Some practices obtain individual medical malpractice policies for their employed APRNs, while others cover the APRNs in the corporation’s overall liability policy as an “additional insured.”  There is no right or wrong answer to this question, it is just a business decision that has cost considerations, as well as practice considerations. Employed APRNs who don’t have an individual policy of insurance but are covered as an “additional insured” on the corporation’s policy would likely not be covered for any clinical activities outside of or not authorized by the practice, such as moonlighting. Employed APRNs who have an individual policy would be covered for such activities, although some employment or practice agreements may limit the employed individual’s ability to provide clinical services outside of the practice.

What are APRN malpractice coverage requirements under the new law?

Q8: What malpractice policy limits do the new law require for APRNs to carry?

A. The new law does not specify how much malpractice coverage an APRN should obtain.  The law only says that the APRN “shall maintain malpractice insurance coverage as a condition of rendering professional clinical services.” The APRN must provide proof of coverage at initial licensure and each renewal thereafter. All physicians must carry a minimum of $1 million coverage, but no such limit is required for APRNs, with the exception of nurse anesthetists and nurse midwives (see Q9 below). If your practice employs APRNs you should consult with your insurance provider about what makes sense for your particular situation. In all probability, they are likely to recommend that you also provide similar insurance limits for APRNs that you choose to provide an individual policy for.

Are APRNs required to be covered by the Stabilization Fund?

Q9: Are APRNs required to be covered by the Health Care Stabilization Fund (HCSF)?

A.  Of the four categories of APRN (nurse practitioner, nurse anesthetist, nurse midwife, and clinical nurse specialist) only nurse anesthetists and nurse midwives are required to be covered by the HCSF. Nurse practitioners and clinical nurse specialists may not be covered by the HCSF, as they are not included in the list of “defined healthcare providers” that are required by law to be covered by the HCSF.