Florida Nurse Practitioners Fight for Autonomy

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 18, 2014, a bill that would expand the authority of nurse practitioners and would allow some to practice independently of physicians was approved by the Florida House Select Committee on Health Care Workforce Innovations. Despite opposition from physician groups, the bill (PCB SCHCWI 14-01) was overwhelmingly approved 13 to 2. However, some of that support might be fleeting.

To read bill PCB SCHCWI 14-01, click here.

Details of the Bill.

Currently, nurse practitioners work under the supervision of physicians. This bill would change the title of what are usually called nurse practitioners, which are registered nurses who have post-college education, usually a master’s degree, to Advanced Practice Registered Nurses (APRNs). The bill would also apply to specialists, such as certified registered nurse anesthetists (CRNAs), certified nurse midwives and certified nurse practitioners.

These nurses would gain new powers under the bill, such as the ability to sign documents that now require a physician’s signature, and the opportunity to earn the title “Independent Advance Practice Registered Nurse” after a certain amount of training and experience. Nurse practitioners would no longer have to contract with and pay a “supervising” physician. Another controversial aspect of the bill is to allow these nurses to gain the authority to prescribe controlled substances. Currently, Florida is one of the few states that do not allow this.

Supporters and Opponents Cannot Agree.

Even though the vote drew bipartisan support, several committee members said their support was tentative, and that they wanted to see further debate and amendments.

According to Health News Florida, the President of the Florida Senate reported he opposes the House bill. Many physician groups, including the Florida Medical Association, agree. These groups point out that physicians receive years of additional training to provide care. They also raise the question why students would want to rack up huge amounts of debt to attend medical school if they could do much of the same work as nurse practitioners with less schooling.

Supporters state this bill will help increase access to primary care, particularly in rural areas. Nurse practitioners also state they already provide much of the care that physician groups bill for. It’s argued that similar laws are already in place in a majority of states around the country, according to The News Service of Florida. To read the entire article from The News Service of Florida, click here.

Expanded Scope of Practice for Nurse Practitioners Already Working in Other States.

According to Health News Florida, 23 other states already allow independent practice for nurse practitioners. Also, military services and the Veterans Administration Health System, already allow nurse practitioners to prescribe controlled drugs and allow independent practice. Florida is the only state that prohibits nurse practitioners from prescribing controlled substances.

According to Health News Florida, the issue is not expected to be considered during the upcoming Legislative session. Click here to read the entire Health News Florida article.

Be sure to check this blog regularly for updates to this story.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced registered nurse practitioners, certified registered nurse anesthetists, midwives and licensed practical nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Comments?

What are your thoughts on the bill? Do you think nurse practitioners should have more autonomy? Or do you believe nurse practitioners should be supervised by physicians? Please leave any thoughtful comments below.

Sources:

Saunders, Jim. “Nurse Practitioners Win First Round In Fight Over ‘Scope.’” The News Service of Florida. (February 22, 2014). From: http://www.theledger.com/article/20140222/NEWS/140229772/1374?Title=Nurse-Practitioners-Win-First-Round-In-Fight-Over-8216-Scope

Gentry, Carol. “Senate Pres.: No On Nurses’ Bill.” Health News Florida. (February 24, 2014). From: http://health.wusf.usf.edu/post/senate-pres-no-nurses-bill

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Two Recent Rulings Allow Certified Registered Nurse Anesthetists (CRNAs) to Administer Anesthesia Without the Supervision of a Physician

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Recently, courts in both California and Colorado ruled that Certified Registered Nurse Anesthetists (CRNAs) are now allowed to independently administer anesthesia to patients without the supervision of a physician. In California, the decision came from the First District Court of Appeals on March 15, 2012. In Colorado, an appeals court allowed the same practice on July 19, 2012.

A recent article in American Medical News (AMN) summarizes these cases. To see the entire article, click here.

The Two Cases Come from a Decision Made by Governors to Opt Out of Requiring CRNAs to be Supervised by Physicians.

According to the AMN article, the California and Colorado cases both stem from a decision made by the sates’ governors to opt out of requiring CRNAs to be supervised by a physician. Ordinarily, in order for hospitals, ambulatory surgical centers, and critical access hospitals to receive Medicare reimbursement under Medicare when a CRNA administers anesthesia, federal regulations require that the CRNA must be supervised by a physician. However, states can opt out if governors consult with the appropriate medical boards and decide that an exemption is in the best interest of the citizens of the state.

The Colorado Medical Society and the Colorado Society of Anesthesiologists Sue.

The Colorado court case states that in 2010, the then-Colorado governor decided to opt out critical access hospitals and 14 rural hospitals in the state. The Colorado Medical Society and the Colorado Society of Anesthesiologists sued contending that the opt out was inconsistent with the state law. The plaintiffs requested the Colorado governor’s decision be blocked by the court.

In 2011, a Colorado district court upheld the exemption. The plaintiffs then appealed.

On July 19, 2012, the Colorado Court of Appeals agreed with the district court’s decision and ruled in favor of independent CRNAs.

Click here to read the entire Colorado Court of Appeals case.

Similar Case in California.

In California, in 2009, the state chose to opt out of requiring physician supervision of CRNAs in Medicare-participating hospitals. The California Medical Association and the California Society of Anesthesiologists sued to block the opt out. The trial court concluded that the opt out was consistent with the law and ruled in favor of independent CRNAs.

On March 15, 2012, the First District Court of Appeals agreed with a lower court’s decision to allow the exemption.

To read the full California Court of Appeals case, click here.

Doctors and CRNAs Disagree on Ruling.

According to the American Medical News article, the regional director of the Colorado Society of Anesthesiologists calls the ruling a safety issue for patients. He believes that by removing a physician’s oversight from the delivery process it diminishes patient care.

Click here to read an opinion article written by a Board Certified Anesthesiologist in Colorado agreeing that unsupervised CRNAs can put patients’ health at risk.

On the other hand, the president of the Colorado Association of Nurse Anesthetist praises the ruling stating, in the article, that research shows no differences in patient morbidity or mortality rates whether or not CRNAs are under a doctor’s supervision.

Click here to read the press release from the American Association of Nurse Anesthetists (AANA).

Liability Risks Associated with Being a CRNA.

The administration of anesthesia by a CRNA requires special training and certification. Oversight and availability of an anesthesiologist is required by most organizations. The major risks for CRNAs include the improper placement and maintenance of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

To learn more on the liability risks associated with advanced nurses, read our Nursing Law Manual, by clicking here.

Contact Health Law Attorneys Experienced in Representing CRNAs.

The attorneys of The Health Law Firm represent Certified Registered Nurse Anesthetists (CRNA) in most legal matters, whether concerning licensure, investigations, allegations of impairment or substance abuse, clinical privileges, contracts or employment disputes.   Whether your legal problem involves negotiating a contract or litigating payment issues, we have the experience. We routinely represent nurse practitioners and other health providers in defending allegations of impairment, drug abuse and diversion, as well as in peer review, clinical privileges or certification by a professional association. Medicare payment issues, Medicaid payment issues and insurance payment issues are among those we routinely encounter.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Gallegos, Alicia. “Court Rules Nurse Anesthetists Don’t Need Physician Supervision.” American Medical News. (August 6, 2012). From: http://www.ama-assn.org/amednews/2012/08/06/prsa0806.htm

Moss, DO, William. “Anesthesia best Left to Experts” Colorado Society of Anesthesiologists. (August 1, 2012). From: http://csa-online.org/pdfs/Anesthesia_best_left_to_experts.pdf

Shaffer, Scott. “Colorado Appellate Court Uphold Opt Out from Federal Anesthesia Rule.” American Association of Nurse Anesthetists. (July 19, 2012). From: http://www.aana.com/newsandjournal/News/Pages/071912-Colorado-Appellate-Court-Upholds-Opt-Out-from-Federal-Anesthesia-Rule.aspx

Colorado Medical Society v. John Hickenlooper and Colorado Association of Nurse Anesthetist, Colorado Nurse Association and Colorado Hospital Association, No. 11CA1005 COA (July 19, 2012),  available at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1005-PD.pdf.

California Society of Anesthesiologists v. California Association of Nurse Anesthetists, No. CPF-10-510191 San Francisco City & County Superior. Ct. (March 15, 2012), available at http://www.courts.ca.gov/opinions/archive/A131049.PDF.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

The 25 Biggest Mistakes Nurses Make After Being Notified of a Department of Health Complaint

By Lance Leider, J.D.

The investigation of a complaint which could lead to the revocation of a nurse’s license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter, and it should be treated as such by the nurse who receives it. Yet, in many cases, attorneys are consulted by nurses after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the nurse.

These are the 25 biggest mistakes we see in the nursing cases we are called upon to defend after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.

2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)

4. Failing to carefully review the complaint to make sure it has been sent to the correct nurse. (Note: Check name and license number).

5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the nurse’s license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)

6. Providing a copy of the nurse’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)

7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.

8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.

9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.

10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.

11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.

12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.

13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.

16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.

17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.

18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.

19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.

20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.

21. Retaining “consultants” or other non-lawyer personnel to represent them.

22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.

23. Attempting to defend themselves.

24. Believing that because they know someone with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.

25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the nurse may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Nurses.  

The attorneys of The Health Law Firm provide legal representation to nurses and nurse practitioners in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.   To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider, J.D. is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Nurse: Please Talk to an Attorney Before You Talk to an Investigator

By Lance Leider, J.D.

In Florida, You DO NOT Have to Speak to an Investigator!

Despite mailing out hundreds of thousands of postcards and letters to nurses throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. In Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Nurses, Investigators are NOT on Your Side.

Let me state this as succinctly and clearly as possible. If you are being investigated, you will not be better off making a statement. You will not be better off explaining your side of the story. The investigator is not your friend. The investigator is not on your side. All you are doing is falling for a trick and helping the government to make a case against you.

Protecting Yourself and Your License.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your nursing license revoked the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

Do NOT Admit to Anything; What You Say May Ruin Your Defense.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense. It may have other witnesses (who may not be around at the time of any hearing or trial). It may have a lot of physical evidence or documents. But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this. You would be surprised at how many nurses believe that they can just talk their way out of the situation; in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. They do not have to be. They will not be the ones making the final decision against you. Theirs is the job of putting together the case against you. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

Determining the Purpose of the Investigation.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Do Not Try to Talk Your Way Out; You Cannot Outsmart the Investigator.

Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting lies than a polygraph expert is. Furthermore, in most cases, you will be the very last person to be interviewed. Therefore, they will already know just about everything that can be used against you. If your statement contradicts in any way what others have told them, they will know you are the one who is lying. However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

Before Saying ANYTHING Be Sure to Consult an Attorney.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.” “I will have my lawyer contact you.” “I cannot say anything until I talk to my lawyer.” “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?” Please don’t fall for this trick, either. This is America. Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them. There is a good reason why they do this.

Far too often the nurse only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidance and avoid this type of mistake?

Contact Health Law Attorneys Experienced with Investigations of Nurses.

The attorneys of The Health Law Firm provide legal representation to nurses and nurse practitioners in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider, J.D. is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.