Advance practice registered nurse telehealth update April 11, 2018 Palmetto Care Connections 6th Annual Telehealth Summit of South Carolina Jeanne M. Born, RN, JD Jborn@nexsenpruet.com

Recent Telemedicine Legislation On June 3, 2016 the “South Carolina Telemedicine Act” was approved by the Governor. Codified a number of provisions in prior policy guidance of the SCBoME. Provided a definition of Telemedicine: Applies only to physicians. Generally applies ONLY to when the physician/patient relationship is established solely via telemedicine. Standard of care: The generally recognized practices and procedures that would be exercised by competent practitioners in a practitioner’s field under the same or similar circumstances. HIPAA/HITECH/Physician Patient Record Act applies. Limits medications that can be ordered (Schedule II/III & “Life-style”) Requires training and monitoring outcomes.

What about Advance Practice Registered Nurses Providing Telehealth Services? In the 2017-2018 session, the legislature recognized that there was no scope of practice authority for APRNs to practice via telehealth, so . . . Proviso 117-135(C): An APRN (§40-33-20(5)), working in a telehealth program may provide services pursuant to a written protocol approved by the SCBoME (§40-47-34 & 40-47-195) using electronic communications, information technology, or other means to a patient in another location with or without an intervening practitioner. Same standard of care as if in-person. Not permitted to exceed scope of practice.

APRN Telehealth Update There is lots going on in the legislature about APRNs and telemedicine. S 345 – Substantially amends the Nurse Practice Act and Physician Practice Act as it relates to APRNs. H 4529 – Amends the Nurse Practice Act and the Physician Practice Act concerning APRN and PA practice of telemedicine.

APRN Telehealth Update On 2/1/2017 S 345 was introduced by Senators Davis, McElveen, Scott and Fanning that substantially changes the Nurse Practice Act and Physician Practice Act provisions pertaining to APRNs. The bill passed the Senate and is now in the House. On 3/21/2018, it was referred to the 3M Committee. Unanimously passed at the 3M Subcommittee II Occupational Regulation and Licensing Boards 4/10/2018!

APRN Telehealth Update The proposed bill revises both the Physician and Nurse Practice Acts: Deletes the concept of “delegated medical acts” and, instead, references only “ specified medical acts” or “medical acts” performed by the APRN, “pursuant to a practice agreement defined [at § 40-33- 20(45)].” Adds to the existing definition of APRN – an RN who is prepared by virtue of additional knowledge and skills gained through an advanced formal education program of nursing approved by the SCBoN: Requirement for national certification within two years post-graduation; Further description of “advanced practice registered nursing” which includes “nonmedical acts, such as population health management; quality improvement or research projects within a healthcare system; and analysis of data and corresponding system recommendations, revision, developments or informatics.”

APRN Telehealth Update   APRN Telehealth Update Revises the definitions of CNM (most substantially), CNS and NP. CNM means an advanced practice registered nurse who holds a master's degree in the specialty area, maintains an American Midwifery Certification Board certificate, and is trained to provide management of women's health care, from adolescence beyond menopause, focusing on gynecologic and family planning services, preconception care, pregnancy, childbirth, postpartum, care of the normal newborn during the first twenty-eight days of life, and the notification and treatment of partners for sexually transmitted infections. CNS and NP: Deletes the references to having “approved written protocols” and replaces with “practice agreement.” NP: Deletes the reference to having a “supervising physician who is readily available for consultation.”

APRN Telehealth Update Deletes the definition of “approved written protocol” and adds “practice agreement” throughout the Acts. Two “sections” of the definition of practice agreement: NP, CNS and CNM: Practice agreement' means a written agreement developed by an NP, CNM, or CNS and a physician or medical staff who agrees to work with and to support the NP, CNM, or CNS. The practice agreement must establish the medical aspects of care to be provided by the NP, CNM, or CNS, including the prescribing of medications. The practice agreement must contain mechanisms that allow the physician to ensure that quality of clinical care and patient safety is maintained in accordance with state and federal laws, as well as all applicable Board of Nursing and Board of Medical Examiners rules and regulations. The practice agreement must comply with Section 40-33-34.

APRN Telehealth Update CNM Only: A CNM also may practice pursuant to written policies and procedures for practice developed and agreed to with a physician who is board certified or board eligible by the American College of Obstetricians and Gynecologists. Written policies and procedures constitute a practice agreement for purposes of compliance with Section 40-33-34 and must address medical aspects of care including prescriptive authority and must contain transfer policies and details of the on-call agreement with the physician with whom the policies and procedures were developed and agreed. The on-call physician has the authority to designate another qualified physician to be the on-call physician if necessary. The on-call physician must be available to the CNM to provide medical assistance in person, by telecommunications, or by other electronic means.

APRN Telehealth Update Requires that the practice agreement comply with § 40-33-34: (Not new) name, address, and South Carolina license number of the nurse; name, address, and South Carolina license number of the physician; nature of practice and practice locations of the nurse and physician; date the practice agreement was entered into and dates the practice agreement was reviewed and amended; and description of how consultation with the physician is provided and provision for backup consultation if the physician is unavailable; and The following information for delegated medical acts: the medical conditions for which therapies may be initiated, continued, or modified; the treatments that may be initiated, continued, or modified; the drug therapies that may be prescribed; and situations that require direct evaluation by or referral to the physician.

APRN Telehealth Update Notwithstanding any provisions of state law other than this chapter and Chapter 47, and to the extent permitted by federal law, an APRN may perform the following medical acts unless otherwise provided in the practice agreement: (a) provide noncontrolled prescription drugs at an entity that provides free medical care for indigent patients; (b) certify that a student is unable to attend school but may benefit from receiving instruction given in his home or hospital; (c) refer a patient to physical therapy for treatment; (d) pronounce death and sign death certificates; (e) issue an order for a patient to receive appropriate services from a licensed hospice as defined in Chapter 71, Title 44; and (f) certify that an individual is handicapped and declare that the handicap is temporary or permanent for purposes of the individual's application for a placard.

APRN Telehealth Update Deletes the general supervision of the APRN by a physician requirement and replaces with the following: Adds that the physician or medical staff agree to “work with and to support the NP, CNM, or CNS.” Requires the practice agreement to govern the mechanisms ensuring the quality of clinical care and patient safety in accord with Federal and State law. Requires that the physician maintain responsibility in the practice agreement for the health care delivery team pursuant to the rules and regulations of the SCBoME.

APRN Telehealth Update Revises the definition of “readily available” by deleting the proximity requirement (45 miles) Requires that the physician be able to be contacted either in person or by telecommunications or other electronic means to provide consultation and advice to the NP, CNM or CNS performing medical acts. Permits the limited prescription of Schedule II narcotics if permitted under the practice agreement and authorized by § 44-53-300 which must not exceed a five-day supply and refills must be authorized by the written agreement of the physician, unless the prescription is for palliative care for which prescriptions may be written for a 30-day supply.

APRN Telehealth Update Additions to the Physician Practice Act: The physician or medical staff who is engaged in a practice agreement with a NP, CNM or CNS must: Hold a permanent, active and unrestricted license and be actively practicing in SC; or Hold an active, unrestricted academic license & be actively practicing in SC; Have in place a practice agreement (as defined) and make it available to the Board within 72 hours of its request; Not enter into practice agreements with > 6 NPs, CNMs or CNSs (or > 6 when combined with PAs) – are exceptions by application to the Board; Not enter into a practice agreement with a NP, CNM or CNS performing a medical act or task outside of the physician’s training and experience – exceptions by application to the Board if warranted and quality of care and safety will be maintained; Maintain responsibility for the practice agreement for the healthcare delivery team.

APRN Telehealth Update Provides for a 90 day period to comply. Practice tip: All “approved written guidelines” must be reviewed and revised to comply with all of the required provisions of the “practice agreement” within 90 days of when the Governor signs the bill into law (assuming the bill is passed). ALERT!! It is misconduct (§ 40-33-110) for a NP, CNM or CNS to Practice without a compliant practice agreement; Failing to follow or comply with the practice agreement; or Knowingly allowing him/herself to be misrepresented as a physician.

APRN Telehealth Update S 345 does not specifically address telehealth. So . . . Why is S 345 relevant to our discussion about telehealth??? Because it collides with H 4529, Rep. Smith’s telehealth bill.

APRN Telehealth Update On 1/9/2018 Rep. Smith introduced H 4529 to amend both the Nurse and Physician Practice Acts to permit certain APRNs (NPs, CNS, CNM) and PAs to perform “delegated medical acts” via telemedicine. Status: Passed the House and is now in the Senate. On 2/27/2018 was referred to the Committee on Medical Affairs.

APRN Telehealth Update H 4529 proposes: Revisions to the Nurse Practice Act. The definition of “delegated medical acts” is not changed with one caveat: 'Delegated medical acts' means additional acts delegated by a physician or dentist to the NP, CNM, or CNS and may include formulating a medical diagnosis and initiating, continuing, and modifying therapies, including prescribing drug therapy, under approved written protocols as provided in Section 40-33-34. Delegated medical acts must be agreed to jointly by both the Board of Nursing and the Board of Medical Examiners. Delegated medical acts must be performed under the general supervision of a physician or dentist who must be readily available for consultation. Delegated medical acts may be performed by telemedicine. § 40-33-20(23).

APRN Telehealth Update The Physician Practice Act’s definition for telemedicine is added to the Nurse Practice Act: 'Telemedicine' means the practice of medicine using electronic communications, information technology, or other means between a licensee in one location and a patient in another location, with or without an intervening practitioner. § 40-33-20(60)

APRN Telehealth Update § 40-33-34 is amended by adding a new Section (G): Tracks § 40- 47-37 (1)    For purposes of this subsection: (a)    'Telemedicine' has the same meaning as provided in Section 40-33-20(60). (b)    'Unprofessional conduct' has the same meaning as provide in Section 40-33-20(62). (2)    An APRN may perform delegated medical acts via telemedicine that are agreed to jointly by both the Board of Nursing and the Board of Medical Examiners and performed pursuant to an approved written protocol between the nurse and the physician. (3)    An APRN who establishes a nurse-patient relationship solely by means of telemedicine shall adhere to the same standard of care as a licensee employing more traditional in-person medical care. Failure to conform to the appropriate standard of care is considered unprofessional conduct and may be subject to enforcement by the board.

APRN Telehealth Update (4)    An APRN may not establish a nurse-patient relationship by means of telemedicine for the purpose of prescribing medication when an in-person physical examination is necessary for diagnosis. (5)    An APRN who establishes a nurse-patient relationship solely by means of telemedicine only may prescribe within a practice setting fully in compliance with this chapter and during an encounter in which threshold information necessary to make an accurate diagnosis is obtained in a medical history interview conducted by the prescribing licensee; provided, however, that Schedule III prescriptions are not permitted except for those Schedule III medications specifically jointly authorized by both the Board of Nursing and the Board of Medical Examiners, which may include, but is not limited to, Schedule III nonnarcotic medications.

APRN Telehealth Update (6)    An APRN who establishes a nurse-patient relationship solely by means of telemedicine shall generate and maintain medical records for each patient using those telemedicine services in compliance with any applicable state and federal laws, rules, and regulations, including the provisions of this chapter, the Health Insurance Portability and Accountability Act (HIPAA), and the Health Information Technology for Economic and Clinical Health Act (HITECH). These records must be accessible to other practitioners and to the patient in a timely fashion when lawfully requested by the patient or his lawfully designated representative. (7)    The provisions of this subsection may not be construed to allow an APRN to perform services beyond the scope of what is authorized by [law].

APRN Telehealth Update Physician Practice Act: The same addition is made under the definition of “delegated medical acts” for both PAs and other assistants and to APRNs (NP/CNS/CNM) – “Delegated medical acts [to the APRN] may be performed by telemedicine.” § 40-47- 20(13) & (14). PAs: “Physician Assistants may perform . . . (3) telemedicine in accordance with the requirements of Section 40-47-37 including, but not limited to, Section 40-47-37(C)(6) requiring board authorization prior to prescribing Schedule II and Schedule III prescriptions, Section 40-47-113, approved written scope of practice guidelines, and pursuant to all physician supervisory requirements imposed by this chapter.” § 40-47-935(A).

APRN Telehealth Update If this statutory scheme does not pass this legislative session, there is already a Proviso in the Budget Bill identical to the Proviso in the 2017-2018 Budget Bill at Section 117.131(C).

APRN Telehealth Update Questions: If both bills pass in their current form - How will these two bills be reconciled? H 4529 focuses on “delegated medical acts” a term which S 0345 deletes. H4529 references the “approved written protocols” that must be “agreed to jointly” by both SCBoME and SCBoN when S 0345 deletes “approved written protocols” and instead references “practice agreements” that must be provided to the Board within 72 hours of the Board’s request; and S 0345 permits APRNs to prescribe Schedule II narcotics and non-narcotics under certain circumstances and H 4529 permits prescribing only Schedule III non-narcotics if jointly authorized by both SCBoME and SCBoN.

APRN Telehealth Update Other Questions: Under S 345, will APRNs be permitted to practice via telehealth if permitted under the “practice agreement”? Telehealth is not addressed. Under H 4529, are APRNs permitted to practice nursing, e.g., when performing nursing acts, not delegated medical acts, via telehealth? The plain language of H 4529 leaves that question open – only addresses telemedicine. H 4529 does not require the APRN to monitor outcomes or provide appropriate training – will that be the obligation of the physician for the medical services provided by the APRN?

APRN Telehealth Update Other Questions: Under H 4529, APRNs are permitted to prescribe medication to patients when the nurse/patient relationship is established solely by telemedicine only during an encounter in which threshold information necessary to make an accurate diagnosis is obtained in a medical history interview conducted by the prescribing licensee – § 40-47-113 has multiple exceptions when a physician has not personally examined the patient: Admission orders; When on call; Continuing medication on a short-term basis for a new patient before the first appointment. These exceptions are not in H 4529 – would similar exceptions apply for APRNs?

APRN Telehealth Update: Resources Budget Proviso 117.135 (C) Budget Proviso 117.131(C) S.C. Code Ann. §§ 40-33-20 & 34 S.C. Code Ann. §§ 40-47-20, 37 & 113 S.C. Code Ann. § 44-53-300

APRN Telehealth Update

Jeanne M. Born Member 1230 Main Street, Suite 700, Columbia, SC 29201 803.540.2038 Jborn@nexsenpruet.com