What Can NPs Do Now That They Couldn't Do Before the Pandemic?

Carolyn Buppert, MSN, JD


July 06, 2020

Significant barriers to nurse practitioner (NP) practice have evaporated recently. Why? Because Congress and the Centers for Medicare & Medicaid Services (CMS) wanted to give providers and health organizations flexibility in responding to the COVID-19 pandemic. One of the changes is permanent; others are temporary.

The one permanent change is the result of Congressional action to modify an existing statute. A federal statute enacted many years ago requiring a physician's order for home health services has finally been changed to permit NPs to order home care.

In the old days (more than 3 months ago), CMS made rules based on statutes but could not contradict a statute. In this time of national emergency, however, Congress gave CMS the power to temporarily waive some statutory requirements, hence the temporary changes.

Here are recent regulatory changes at the federal level that specifically address NPs:

Home health under Medicare (permanent change). The CARES Act allows a Medicare-eligible home health patient to be under the care of an NP, clinical nurse specialist (CNS), or physician assistant (PA) who is working in accordance with state law. NPs may (1) order home health services, (2) establish and periodically review and sign a plan of care for home health services, and (3) certify and recertify that a patient is eligible for Medicare home health services. NPs can bill for this using home health certification codes.

Home health under Medicaid (temporary change). Medicaid regulations now allow NPs and some other nonphysician practitioners to order medical equipment, supplies and appliances, home health nursing and aide services, physical therapy, occupational therapy, speech pathology, and audiology services, in accordance with state scope-of-practice laws. Note that state laws may not parallel this federal rule, so practitioners should check their state's position on this matter.

Hospitals (temporary change). For many years, federal regulations have required that hospitalized Medicare patients be under the care of a physician. In the past, NPs could provide evaluation and management and other services to hospitalized patients, but a physician had to be designated, on the patient's chart, as the attending physician of record. This was the case even in states that do not require NPs to practice in collaboration with a physician.

Now, CMS has waived (temporarily) the requirement that a physician oversee the care of hospitalized patients. NPs and PAs may provide care to hospitalized patients as the physician of record, as long as this waiver does not conflict with a state's emergency preparedness or pandemic plan.

Critical access hospitals (temporary change). CMS waived its requirement that a doctor of medicine or osteopathy must be physically present in a critical access hospital to provide medical direction, consultation, and supervision for the services provided. CMS still requires that a physician be available "through direct radio or telephone communication, or electronic communication for consultation, assistance with medical emergencies, or patient referral." This change allows a physician to perform responsibilities remotely, if appropriate, and also allows critical access hospitals to use NPs and PAs to the fullest extent possible while ensuring necessary consultation when needed.

In another change, CMS waived minimum personnel qualifications for CNSs, NPs, and PAs. CNSs, NPs, and PAs still must meet state requirements for licensure and scope of practice, but not additional federal requirements that may exceed state requirements. This change gives states and facilities more flexibility in using NPs as long as these federal changes are consistent with a state or pandemic/emergency plan.

Supervision of diagnostic tests (temporary change). NPs, CNSs, certified nurse-midwives (CNMs), and PAs may supervise diagnostic tests as authorized under state law and licensure. In the past, NPs could perform diagnostic tests, but a physician needed to be the required "supervisor" for tests requiring supervision. NPs still will need to continue any state-required collaborative relationships with supervising or collaborating physicians.

Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) (temporary changes). CMS waived its requirement that an NP, PA, or CNM be available to furnish patient care services at least 50% of the time the RHC and FQHC operates.

CMS did not waive the requirement that a physician, NP, PA, CNM, clinical social worker, or clinical psychologist be available to furnish patient care services at all times the clinic or center operates.

CMS modified its requirement that physicians must provide medical direction for RHC or FQHC healthcare activities and consultation for, and medical supervision of, the healthcare staff, but only with respect to medical supervision of NPs, and only to the extent permitted by state law. A physician continues to be responsible, either in person or through telehealth and other remote communications, for providing medical direction and supervision for the remaining healthcare staff.

This article covers the changes specific to NPs. Additional changes affect all providers, including NPs, and include significant changes to telehealth services. A list of and links to all of the CMS waivers and flexibilities to deal with the pandemic can be found at Coronavirus Waivers & Flexibilities.

Carolyn Buppert (www.buppert.com) is an attorney and former nurse practitioner who focuses on the legal issues affecting nurse practitioners.

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