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Ohio APRN Law 101 Jeana M. Singleton, Esq.

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Presentation on theme: "Ohio APRN Law 101 Jeana M. Singleton, Esq."— Presentation transcript:

1 Ohio APRN Law 101 Jeana M. Singleton, Esq.
Brennan, Manna & Diamond, LLC 75 E. Market St., Akron, Ohio 44308 January 28, 2017 NEONP Transition to Practice Seminar

2 Roadmap for Today 1. Recap of APRN Ohio law basics and SCA requirements 2. Legal implications pertaining to billing 3. Patient privacy and other legal issues 4. Employment contract basics

3 Ohio APRN Law Basics

4 Ohio ARPN Law Basics Ohio Nurse Practice Act Board of Nursing
Ohio Revised Code, Chapter 4723 Ohio Administrative Code, Chapter 4723 Board of Nursing Scope of practice Licensure Disciplinary issues

5 ORC 4723.03 and 4723.44: Unauthorized Practice and APRN Titles
No person may engage in the practice of nursing without the appropriate license. No person may use a nursing title or nursing initials without the appropriate license. No person may engage in APRN practice or use an APRN title without meeting all components of Ohio law (i.e. collaborating physician, SCA, certificate of authority, certificate to prescribe, etc.)

6 Common Pitfalls: Unauthorized Practice and APRN Titles
License expiration ANCC certification expiration Lapsed, terminated, or inadequate SCA Exceeding scope of practice

7 O.R.C SCA Requirement “…a clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner may practice only in accordance with a standard care arrangement [SCA] entered into with each physician or podiatrist with whom the nurse collaborates.”

8 Feb. 1, 2016 – SCA Updates SCA review and resign every 2 years
Required language re: prescribing opioid analgesics to minors Required language re: OARRS reports and physician consultations QA committee Rx reviews  At least 1 Dr. on committee (instead of all Drs.) QA committee chart reviews  At least 1 Dr. on committee (instead of all Drs.) APRN verifies collaborator’s license ever 2 years; Can use e-license site New FDA drugs – Can prescribe until CPG later disapproves (w/in scope, type is already on Formulary or SCA, collaborator agrees in SCA) Maintain SCAs for 3 years

9 Schedule II Substances
2012 law and rule changes allow APNs to prescribe schedule II controlled substances. Make sure to update DEA registration to include schedule II drugs. Can only prescribe schedule II drugs from select locations (See OAC (D)). Must have a semi-annual review of a representative sample of prescriptions and schedule II prescriptions written by APN

10 Schedule II Site Restrictions
NOTE: APNs cannot prescribe schedule II controlled substances from a convenience care clinic even if it is owned/operated by one of the select locations listed on the next slides (with the exception of prescriptions limited to a 24 hours supply as set forth in pre-existing law) Hospital Entity owned or controlled by a hospital or by an entity that owns or controls 1 or more hospitals Health care facility operated by the Dept. of Mental Health or Dept. of Developmental Disabilities Nursing home County home or district home certified under Medicare or Medicaid

11 Schedule II Site Restrictions (Continued…)
Community mental health facility Ambulatory surgical facility Freestanding birthing center Federally qualified health center or look-alike Health care facility operated by board of health or an authority having duties of a board of health Medical practice, ONLY IF, practice has 1 or more physicians who are also owners of practice, practice provides direct patient care, and APRN has SCA and collaborates with at least 1 of the physician owners who practices primarily at that site

12 Common SCA Pitfalls Failure to have SCA signed by APRN and Collaborator Failure to review and re-sign SCA (now every 2 years) Practicing outside the scope of the SCA APRN’s scope of services must fall within the Collaborator’s scope of services Failure to complete all prescription reviews and quality assurance measures Failure to notify Board of Nursing within 30 days after changing collaborators Not doing what it says!

13 Recap of SCA Thoughts Tailor SCA to meet APRN’s practice
Understand the contents of the SCA and follow all provisions Beware of Schedule II site restrictions Update SCA to address recent rule change – Effective Feb. 1, 2016 Review and resign every 2 years OAARS QA committees Verifying collaborator license every 2 years FDA-approved drugs Maintain copies of SCA for 3 years

14 Other 2016 BON Rule Changes CPG must meet at least 2 times per year
Reviewed info on application process for armed forces and fee waivers available Added “nurse volunteer certificate” Revised education and externship requirements for CTP Removed SCA req. to state “frequency of review” with collaborator Removed SCA req. to document “collaborative practice” with a supervising Dr. Revised OARRS requirements – New guidelines

15 H.B. 216 – Effective April 4, 2017 Licensure
RN + APRN with role designation Elimination of CTPE Current APRNs must meet pharmacology education requirements 48 CE’s every 2 years (24 RN - 1 law; 24 APRN – 12 pharmacology)

16 H.B. 216 – Effective April 4, 2017 (Continued…)
Formulary – Exclusionary Schedule 2 changes Adding assisted living as approved location Non-authorized sites – 72 hour supply, instead of 24 hour supply (If terminal condition and initially prescribed by MD/DO.)

17 H.B. 216 – Effective April 4, 2017 (Continued…)
SCA changes The Standard Care Arrangement (SCA) no longer requires a provision for 1) a Procedure for Regular Review of Referrals to Other Health Professionals and Chart Review and, 2) a policy for care of infants up to age one and recommendations for collaborating physician visits for children from birth to age three. 120 day “buffer” period to secure a new collaborating physician if the current collaborating physician terminates the collaboration agreement with the APRN. Upon notification by the current collaborating physician of an intent to end collaboration, the APRN will notify the OBON. When the OBON receives the notification the 120 day buffer period will begin. During this buffer period the former SCA remains in effect to allow the APRN to continue to practice while searching for another collaborating physician. A copy of the SCA does not need to be located at all work sites. However, the SCA must be kept on file by the APRN’s employer.

18 H.B. 216 – Effective April 4, 2017 (Continued…)
Psych CNS Psychiatric certified collaborating physician or a collaborating primary care physician certified in family medicine, internal medicine or pediatrics. Psychiatric certified nurse practitioners were not included in this new change and they must continue to have a psychiatric collaborating physician only. (Will likely change in near future.)

19 H.B. 216 – Effective April 4, 2017 (Continued…)
APRN Advisory Committee To advise BON Diabetic school children May write orders to be followed by healthcare providers in schools Advanced pharmacology course Valid 5 years instead of 3 years

20 Billing Issues

21 Legal Implications and Billing
Billing Rules and Guidance  Ohio and federal laws, regulations, commentary, advisory opinions, billing manuals/policies Criminal and civil penalties

22 Ohio Insurance Fraud Breach of Contract Criminal Violations
ORC (Medicaid) No false claims No kickbacks ORC (Commercial) ORC (Commercial) No kickbacks – Not as broad as federal anti-kickback statute

23 Federal Billing Laws Stark Law Anti-Kickback Statute False Claims Act

24 Stark Law Prohibits physicians from referring to an entity with whom he or a family member has a financial relationship, unless the relationship meets an exception “Physicians” is not defined as APRN, but law may still be implicated for APRNs in physician practice or hospital

25 Anti-kickback Statute
Prohibits payment in any nature in exchange for referrals of health care services that are paid by the government

26 False Claims Act May not file false claim for government reimbursement
Healthcare Reform: AKS is automatically a FCA violation Examples: up-coding, billing for services not performed, billing for services not medically necessary, duplicate billing, insufficient documentation

27 Federal Penalties Stark law: Anti-kickback statute: False Claims Act:
Denial of all claims/Refund $15,000 civil monetary penalty per service $100,000 civil monetary penalty per arrangement Exclusion Anti-kickback statute: Criminal - $25,000 and/or up to 5 years imprisonment Civil – imposition of civil monetary penalties: Up to $50,000 civil monetary penalty per violation Treble damages of the remuneration False Claims Act: Imposition of civil monetary penalties

28 Importance of Documentation
Proper documentation required to avoid False Claims implications. Ohio Nurse Practice Act (Section 4723 of the Ohio Revised Code and Rules of the Board of Nursing in Ohio Administrative Code Sections – ) also have documentation requirements.

29 OAC Nurse shall, in a complete, accurate, and timely manner, report and document nursing assessments or observations, the care provided by the nurse to the patient, and the patient’s response to the care. Nurse shall not falsify any records or documents prepared or utilized in the course of care, including case management documents, reports, time records, and documents related to billing for nursing services.

30 Signs of Proper Documentation
Chronological Comprehensive Complete Concise Descriptive Factual Legally aware Legible Relevant Standard abbreviations, terms, and symbols Thorough Timely

31 Payor Audits Medicare’s Recovery Audit Contractors
Commission-based bounty hunters Audit Medicare patient charts to look for appropriate documentation Mistakes require repayment of reimbursement Hospitals and provider practices Commercial carriers can also perform independent audits of provider practices

32 Common Payor Audit Mistakes
1-3 CPT Codes (E/M codes) Common Mistakes: Stamp signatures, no signature, allowing nurse or office manager to sign name Insufficient documentation of the patient encounter Upcoding No valid order for ancillary services Lack of documentation Remember, medical staff governing documents may also have medical record documentation requirements.

33 Corporate Compliance Plan
PPACA requires corporate compliance plan Policies and procedures to protect against false claims violations and other exposures Annual training – Must actually understand and follow the plan

34 Patient Privacy and Other Legal Concerns

35 HIPAA Protects privacy and security of a patient’s protected health information. Must comply with the Privacy Rule and the Security Rule. May only disclose patient information if: To the patient or to a third party when instructed by the patient in writing For treatment, payment or health care operations Pursuant to patient authorization HITECH – Expanded scope of HIPAA (business associates, breach notification); Provides EMR incentives and penalties FACTA – Identity theft protection requirements for “creditors” (Medical Identity Theft) Not applicable to private practices Most likely applicable to hospitals

36 HIPAA Penalties Civil penalties (significantly increased by HITECH):
Did not know of violation, and would not have known by exercising reasonable diligence: $100 - $50,000 per violation, max of $1.5 million per calendar year Violation due to reasonable cause: $1,000 - $50,000 per violation, max of $1.5 million per calendar year Violation due to willful neglect, corrected within 30 days: $10,000 - $50,000 per violation, max of $1.5 million per calendar year Violation due to willful neglect, not corrected within 30 days: $50,000 per violation, max of $1.5 million per calendar year Criminal penalties: Fines of up to $50,000 and/or imprisonment of not more than one (1) year for intentional disclosures of protected health information. Criminal penalties of $100,000 and/or imprisonment of not more than five (5) years for obtaining or disclosing protected health information under false pretenses. Criminal penalties of $250,000 and/or imprisonment of not more than ten (10) years for obtaining protected health information with the intent to sell, transfer or use it for commercial advantage, personal gain or malicious harm.

37 HIPAA Compliance Plan Policies and procedures to protect against HIPAA violations Annual training – Must actually understand and follow the plan

38 Common HIPAA Mistakes Social networking, pictures, “friending” patients EHR look-up of celebrities, family, friends Patients of other providers Disclosures to family/friends involved in the patient’s care

39 Social Media and Patient Privacy
Journal of the American Medical Association 2009 survey: 60% of medical and nursing students polled had made unprofessional postings online that violated patient confidentiality, contained discriminatory language, or included inappropriate sexual language

40 Social Media MYTHS Posts are private if the correct settings are used
It is ok to refer to patients on social media as long as the patients are not identified by name Social media is personal and has nothing to do with employment or the Board of Nursing Content that has been deleted from a site is no longer accessible A patient can consent to inappropriate social media conduct by a nurse

41 Social Media “Pitfalls”
“Friending” or communicating with patients or former patients online Posting confidential information, pictures, and videos online relating to patients Employees disparaging employer, boss, or co-workers Contacting other employees with unwelcomed or inappropriate messages Potential for employment discipline, Board of Nursing sanctions, HIPAA violations, or invasion of privacy lawsuits

42 Social Media “Do’s” DO:
Remember that you have an ethical and legal obligation to protect patient confidentiality at all times Maintain professional nurse-patient boundaries Be aware of and comply with your employer’s social media and device policies

43 Social Media “Do’s” DO:
Report any breach of privacy or confidentiality Stay informed of privacy settings of social media platforms as they may often change But remember, it’s called social media for reason. Making your setting private is not enough to maintain privacy

44 Social Media “DON’T’s”
Share or post any information that could be used to identify a patient or may in any way violate that patient’s right to privacy Disparage patients, even if not identified Take a photo or video of a patient on a personal device

45 Social Media “DON’T’s”
Transmit any patient-related image Make comments about another individual that are or could be seen as threatening, harassing, profane, obscene, sexually explicit, or otherwise offensive

46 Maintaining Healthy Boundaries with Patients
Ohio Revised Code provides that “sanctions may be imposed for [f]ailure to establish and maintain professional boundaries with a patient.” Nurses are further prohibited from interfering in a patient’s personal life, engaging in sexual conduct with a patient, and engaging in behavior that may cause abuse to a patient. Ohio Administrative Code

47 Maintaining Healthy Boundaries with Patients
Nurses may also be sanctioned for conduct that may reasonably be interpreted as abuse, personal interference, sexual conduct, etc. Good intentions don’t always matter! In addition, it is presumed that a patient may NOT consent to inappropriate nurse conduct. You can get into trouble even if the patient contacts you first!

48 Other Legal Issues Expired licensure/ANCC certification
Prescription drug dealing Self-prescribing/Forging signatures on prescriptions Prescribing for family and friends without a patient-provider relationship SCA termination by collaborating physician Exceeding scope of practice (i.e. Not following Schedule II or other prescribing rules)

49 Board of Nursing Enforcement Actions and Investigation Survival

50 Board of Nursing Enforcement Actions
ANY person may report conduct to the Board of Nursing A nurse’s employer may be required by law to report known misconduct to the Board Ohio Revised Code (A) An individual that reports to the Board or testifies in good faith is not liable for civil damages related to the report or testimony The Board will “investigate any evidence that appears to show that any person has violated any provision of [the Nurse Practice Act] or any rule of the [B]oard”

51 Board of Nursing Enforcement Actions
Sanctions for violations of the Nurse Practice Act or any rule of the Board include: License denial, revocation, or suspension; Fines; or Reprimand or other discipline.

52 Investigation Survival
FIRST – Consult legal counsel! Be honest and candid Answer the questions being asked Know your rights Ask all questions before signing anything

53 Employment Contracts 101

54 Types of Income Streams
Active v. Passive

55 Income Impactors Compensation by Specialty and Sub-specialty
Productivity Geographic Modifiers Years in Practice

56 Nurse Practitioner Compensation (Primary Care)*
25th Percentile $ 84,378 50th Percentile $ 98,269 75th Percentile $ 112,549 90th Percentile $ 130,637 *2015 MGMA Compensation Survey

57 Nurse Practitioner Compensation (Acute Care)*
25th Percentile $ 95,005 50th Percentile $ 107,853 75th Percentile $ 119,558 90th Percentile $ 136,865 *2015 MGMA Compensation Survey

58 Basic Contract Components
Compensation Duration Benefits Ownership Post-Termination Restrictions

59 Contract Terms Compensation
Salary v. Production Blended Option (Salary + Productivity) Increases

60 Contract Terms Duration
Specified length? Termination Cause No Cause

61 Contract Terms Benefits
Vacation/PTO CE – Time/Expenses Malpractice Occurrence v. Claims Tail Coverage Licensure Fees Hospital Staff Fees Health Insurance Legal Fees Disability Life Insurance Car Phone/Pager Subscriptions Retirement Plans Moving Expenses Maternity Leave OAAPN, AANP, ACNP – dues, costs, time off

62 Contract Terms Ownership
Commitment Buy-In Assets Included In Practice Other Assets

63 Contract Terms Post-Termination
Non-Competition Time Geography Non-Solicitation Patients Employees

64 The Moral of Today’s Story
Evaluating where you are Deciding where you want to go Planning how to get there Look before you leap – Call your attorney! 64

65 Questions? Jeana M. Singleton, Esq. 75 East Market Street Akron, Ohio


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