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Collaboration and Independent Practice: Ongoing Issues for Nursing

November 17, 2004

Inter-professional collaboration and independent practice: Why these issues are important

During the twentieth century, the nursing profession has undergone immense change. Nursing has progressed from an occupation to a fully licensed profession, with members that provide a broad range of services independently, and in a variety of professional relationships with other providers. This evolution has changed how nurses are educated, clinically prepared, and how they perceive their role. Starting with turn-of-the-century debates concerning the appropriateness of professional nursing practice, registered nurses began assessing not only their licensure status, but their roles related to other professionals.(1, 2)

In the early years of the nursing profession, it was generally believed that nurses served and cared for their patients by assisting physicians. However, the perception of nursing often varied dramatically from its practice. During wars and times of crises, nurses worked with and beside physicians conducting surgical procedures, diagnosing care, and prescribing treatments and drugs. These practices were documented as occurring in the U.S. as early as the Civil War. The role of the public health nurse, as it developed earlier in this century, was often independent, with nurses working with families of patients with tuberculosis or other highly contagious diseases and providing a broad range of interventions, both health- and socially-focused.

Intrinsic to nursing is the collaborative process: nurses and physicians working together and independently assessing, diagnosing, and caring for consumers by preparing patient histories, conducting physical and psychosocial assessments, and reviewing and discussing their cases with other health professionals to determine the hanging health status of each client. Yet the products of these fruitful relationships and work structures were discounted due to state regulation of health care and the additional need to define relationships and responsibilities in statute.

Nurses and physicians have understood the importance of this overlap in scopes, practices, and patient care, yet there is little literature and virtually no legislation that clearly provides a balanced accounting of the benefits of this working relationship. This article describes the regulatory and professional history of collaboration and nursing practice and explains the distinctions in state law related to collaborative practice. This article also provides a historical basis for review of collaboration and incorporates a survey on case law and collaborative practice.

DISCUSSION

History of Collaboration

As noted by Safriet (1992) and Hadley (1989), early nurse practice acts were generally constructed around their medical counterparts and were written to avoid conflict in professional practice. In the context of professional regulation, nursing scopes were structured to include narrowly defined independent functions and to mandate a dependent or complementary role for nurses.(3) Physicians, as the first category of health care providers to gain licensure, attempted to incorporate all aspects of diagnosis and treatment into the definition of medical practice.(4) Nurses, recognizing the limitations created by early medical practice acts, attempted to write around the physician-imposed limitations to create a nursing scope of practice. At that time, the medical profession was virtually all male and nursing almost all female; divisions and attitudes toward and between the two professions often reflected these gender differences. The debate about regulation was limited to elected officials and regulators who, at that time, were almost exclusively male, and who brought a male perspective to regulation. Nursing continued its thoughtful and deliberative studies and discussions on regulation and licensure, but their ideas and recommendations were then interpreted by male legislators and lawyers when incorporated into statute. Not fully understanding the concerns of nurses, legislators and regulators continued to perpetuate a model of health regulation that confined nurses to a largely complementary role in providing health services.(5) Although nurses made diagnoses and recommended care, and often noted inappropriate diagnosis or medication errors, the role of the nurse as an equal partner in the assessment and evaluation process was neither emphasized nor acknowledged outside of the clinical setting.

With the evolution of nursing practice and the expansion of professional certification and specialty practice, the nursing profession tried to expand and redefine nursing practice to reflect actual practice, and not the restrictive regulatory model. Both professionals and regulators attempted to reshape and restructure the basic premises of nursing practice. However, regulators often felt that a distinct disadvantage existed in the regulatory process, which was compounded by the limited authority generally delegated by the legislature to Boards of Nursing (BON). Some BONs did not even have the authority to issue declaratory opinions interpreting the nurse practice act. Thus, any interpretations offered by the boards were considered advisory and given limited weight within the administrative regulatory process. It was feared that should another board question the advisory interpretation and conduct full administrative adjudicatory hearings on the issues and render a decision, courts might find the second opinions more instructive on nursing practice than the advisory opinion of the BON. For these reasons, nurses in emerging specialty practice often did not challenge their legal scopes and roles, but instead worked in the practice setting to establish new professional boundaries and roles.

Collaboration and Advanced Practice

During the 1960s, nurses revisited the issue of collaboration with the evolution of advanced nursing practice. Once again, the evolution of the profession exceeded the bounds of the legislated nursing scope of practice. Although Advanced Practice Nurses (APNs) were trained to practice independently and to diagnose drugs, therapies, and devices, few nurse practice acts created an independent scope of nursing practice. In states where the practice act did create an independent scope of nursing practice, regulators were fearful of moving toward independent authorization of APNs. When questions arose about the scope of nursing practice, physicians and others often used the language incorporated in nursing or medical practice acts to limit the evolution of nursing practice.(6) Referring to medical practice acts or other licensing language that uses the terms “medical diagnosis” or “delegated medical acts,” Boards of Medicine (BOM) often intimated that nurses might be practicing medicine without a license. Many state BONs, as well as BOMs, often believed that much of the requisite authority needed for advanced practice could only be derived by physician delegation of medical practices.

Instead of directly challenging this interpretation of regulatory policy, nurses used the existing dichotomy in professional and regulated practices to emphasize the expansion of the role and responsibility of the nurse in the professional setting. When legislation was introduced, APNs testified about their actual practice setting structure, the responsibilities given to them by supervising physicians, and their ability to provide care independently, often in under-served areas. Emphasizing the realities of nursing roles, education, and how nurses collaborate with physicians and other professionals, nurses began to see an emerging legislative trend involving the incorporation of collaboration into statutory definitions of practice. To a large extent, this trend reflected a compromise that emerged in the face of organized physician opposition to the expansion of nursing practice. However, inasmuch as it also reflected current practice arrangements for many nurses, it was often a compromise that nurses were willing to accept if it included official recognition of their expanding roles. As different legislation was enacted in one state, and then another, each state developed its own approach to collaborative practice.

Concerns about Statutory Requirements for Collaboration

Nurses have always practiced in collaboration with other professionals-with physicians, pharmacists, other nurses, social workers, and a wide variety of health care practitioners. Arguably more than any other category of health care professional, nurses have understood that good patient care depends on the contributions and interactions of various providers. Moreover, in the late 1990s, health care is increasingly being provided in large, complex systems of care in which no provider works in isolation. Even physicians, who have served as the very model of independent practice, rarely practice alone. Increasingly, physicians are practicing as members of practice groups-often large, multi specialty groups-or as employees or contractors of large health systems. Even physicians who maintain private practices refer to and consult with specialists, or use other practitioners for emergency back-up.

If collaboration is the norm in professional practice, why should nurses object to it as a requirement for advanced practice, prescriptive authority, or for reimbursement? There are a number of reasons. Many nurses object to the practic\e of legislating their practice patterns. Determining what kind of relationship is needed with other professionals, when it is needed, and what form it should take are questions of professional judgment and norms. Not only are legislative and regulatory requirements unable to substitute for professional judgment, such requirements are unlikely to provide the flexibility needed to fit the wide variety of clinical situations and physician-nurse interactions necessary to be effective in the first place. (One can only imagine what the reaction of organized medicine would be if a state legislature attempted to delineate when and how internist physicians should refer patients to a specialist.) Further, because “collaboration” is rarely defined (at least in any agreed upon way) and is often used as a euphemism for “supervision,” many nurses chafe at the notion of prescribing into law an antiquated, dependent view of nursing practice.

In its testimony before the Physician Payment Review Commission (PPRC) in 1993, the American Nurses Association (ANA) explained its concerns about statutory requirements for “collaboration:”

Advanced practice nurses are, as are all registered nurses, independently licensed and accountable for their actions. [They are].able to deliver.services independent of their relationship with physicians or other health care providers. Collaborating with and referring to other health providers is a matter of good professional practice . Regardless of practice setting or supervision requirements, advanced practice nurses, like most health professionals, generally maintain a network for referral to and collaboration with other professionals and maintain a means to access emergency back-up.

In short, few could object to “collaboration” as a goal and as a means of effective professional practice. What proves more problematic is the use of this concept to enforce a dependent and hierarchical relationship between independent professions-a relationship away from which nursing has already largely evolved.

The Crazy Quilt Continues

To better understand the concept of collaboration, we must understand the differences in state practice acts. There are twenty- seven states with joint regulation of advanced practice (ANA, 1997). Likewise, there are forty-eight states with some form of statute or regulation authorizing nurse prescriptive authority.(7) Yet virtually every statute is different, in part because medical societies have intervened to limit nursing practice. In some states, collaboration is not defined, but implicit to the relationship articulated in the practice act, while in other states collaboration is presumed to occur in the development of practice agreements, collaborative agreements, or protocols. Some states define collaboration in a manner akin to supervision, while others instead define and compel supervised practice arrangements. And, in some states, the law requires one level of collaboration for advanced practice designation and another level of collaboration for prescribing drugs and devices (Pearson 1998). Some states even make distinctions in the level of collaboration or supervision required by setting. (8) Although every state’s legislative structure cannot be discussed, analysis and evaluation of some may be helpful in understanding why collaboration is not an easily defined legislative concept.

Alaska, which has one of the most flexible statutes in the country, does not include a definition of collaboration in its statute. Instead, state law requires APNs to develop a consultation and referral plan that outlines procedures for consultation with other health care professionals.

Alternatively, Alabama and Mississippi have joint regulation of advanced practice. Alabama has a joint committee (BON/BOM) for writing the rules and regulations related to collaborative practice; Mississippi’s joint committee is responsible for writing rules on acts of medical diagnosis, prescription writing, or other corrective measures. Alabama’s definition of collaboration does not require “direct, on-site supervision, but does require professional oversight and directions as may be required.” Mississippi defines the role of the APN as a “collaborative, consultative relationship” with a physician whose practice is compatible with the Nurse Practitioner (NP).

Nebraska and Arkansas have different levels of collaboration for APNs. Nebraska has joint regulation of advanced practice and Arkansas does not. Nebraska requires physician-supervised practice for APNs without a master’s degree. APNs with a master’s degree practice with consultation, collaboration, and with the consent of a physician. Also, Nebraska waives the requirement for collaboration, supervision, or practice agreement if APNs can show they have made a diligent effort to obtain an integrated practice agreement and will practice in a geographic area where there is a shortage of health services.

Like Nebraska, Arkansas requires physician direction/protocol for NPs who were originally authorized by the state, and the statute provides second licensure for APNs who are nationally certified.

Arkansas, as well as a number of other states, creates a separate level of collaboration for nurses who prescribe. Thus, APNs in Arkansas can practice independently if they do not prescribe (with the exception of nurse midwives, who must have a consulting physician), but if the APN prescribes, he or she must enter into a collaborative practice and use protocols to prescribe.(9) There is also a move by states to impose an overall collaboration/ supervision requirement on new NPs.(10) Thus, it is quite obvious that statutory collaboration does not follow any general format and ranges in flexibility and application under state law.

Other Definitions of Collaboration

Federal law defines “collaboration” as it applies to advanced nursing practice. For example, Section 1861(s)(K)(2), which refers to Medicare Part B reimbursement of professional services provided by nurse practitioners and clinical nurse specialists, requires that such services be delivered “in collaboration with a physician” to be eligible for payment. Section 1866 provides this definition of “collaboration:”

A process in which a nurse practitioner [or clinical nurse specialist] works with a physician to deliver health care services within the scope of the nurse practitioner’s [or clinical nurse specialist's] professional expertise, with medical direction and appropriate supervision as provided for in jointly developed guidelines or other mechanisms as defined by the law of the State in which services are performed.

This definition is a broad one, allowing some flexibility as to the form and substance of a collaborative agreement between nurse and physician. It is the same definition that has applied since 1990 to NPs and Clinical Nursing Specialists (CNSs) practicing in rural areas and who seek Medicare reimbursement, which became available as a result of the Omnibus Budget Reconciliation Act of 1990 (OBRA ’90). As of January 1, 1998, as a result of the Balanced Budget Act of 1997, NPs and CNSs in all geographic areas are eligible for Medicare Part B reimbursement when providing Medicare-eligible services. With broadened availability of Medicare reimbursement-and thus a broader applicability of the “collaboration” requirement for NPs and CNSs seeking reimbursement-it remains to be seen what, if any, problems are posed by this requirement. The Health Care Financing Administration (HCFA), the federal agency that administers the Medicare and Medicaid programs, has not provided any specific guidance in interpreting this statutory definition. HCFA’s instructions to Medicare carriers and intermediaries (private Contractors who administer Medicare in each state) regarding NP and CNS reimbursement under OBRA ’90 essentially repeat the statutory language. A more recent communication to carriers and intermediaries regarding the Balanced Budget Act provisions on NP/CNS reimbursement provides no further discussion or expansion of this subject.

The issue of collaboration also became a point of concern during the national discussion on comprehensive federal health care reform during 1992-94. Nurses pushed for broader use of registered nurses and APNs as a critical resource in expanding access to affordable, quality health care services. Nurses won a largely sympathetic ear from the Clinton Administration, which recognized the role that nurses could play in a reformed health care system, particularly in expanding access. The President’s Health Security Act ultimately included provisions to expand reimbursement for NP and CNS services and pre-empt state laws that unduly restrict the practice of nurses and physician assistants.

Such bold stances, however, earned the enmity of organized medicine, particularly the American Medical Association, for which the Clinton plan’s pro-nurse provisions provided one (of many) sources of uneasiness with the Health Security Act. The American Medical Association (AMA) continued to assert its opposition to direct reimbursement for advanced practice nursing services and its conviction that APNs must act only under physician “supervision.”

Leaders of AMA and ANA met during 1993 and 1994 in an effort to reach agreement on the dimensions of nurse-physician professional relationships, and specifically to establish a mutually agreeable definition of “collaboration.” After lengthy discussion and negotiation, a joint AMA-ANA task force arrived at the following definition:

Collaboration is the process whereby physicians and nurses plan and practice together as colleagues, working interdependently within the boundaries of their scopes of practice with shared values and mutual acknowledgment and respect for each other’s contribution to care for individuals, their families, and their communities.

Members of this task force took the definition back to their respe\ctive organizations. The ANA Board of Directors adopted it in 1994. The AMA, however, has never adopted it, nor have further formal discussions on the issue of “collaboration” taken place since.

Case Law Related to Collaboration

Under the early nurse practice acts, all nurses worked under the supervision of physicians. Along with regulation and growth in the profession, registered nurses developed an independent scope of nursing practice. Although each registered nurse sued may not necessarily be independently responsible for her practice, more registered nurses are being held legally accountable using independent nursing judgement and expertise. (American Jurisprudence 1997) This independent accountability has provided an important foundation for the development of independent nursing practice. However, with continued use of collaborative arrangements, combined with inconsistent definitions of collaboration and other factors, the case precedent has become blurred.

Physician groups often imply that medical supervision of advanced nursing practice is necessary, because they believe nurses always function as agents or employees of physicians, and as such, do not practice independently. This is untrue, especially when there is clarity about the regulation of the APN. APNs have been held to a standard of care independent of physician supervision in malpractice suits. In the case of Fein v. Permanents Medical Group 38 Cal. 3d 137, aff’d 414 U.S. 892 (1985), the lead case defining the standard of care for NPs, the California Supreme Court went directly to the state nurse practice act and acknowledged the legislative intent “to recognize the existence of overlapping functions between nurses and physicians and to permit additional sharing of functions within organized health systems which provide collaboration between physicians, and registered nurses.” Thus, the court noted that: …the ‘examination’ or ‘diagnosis’ of a patient cannot in all circumstances be said-as a matter of low-to be a function reserved to physicians, rather than registered nurses or nurse practitioners.

The court expanded the standard of care for NPs to require them to meet “the standard of care of a reasonably prudent nurse practitioner in conducting the examination and prescribing treatment.” Fein, ibid.

This standard has been applied to other cases as well. In the matter of Kennedy v. U.S. 750 F.Supp 206 (1990), the court was asked to determine malpractice in a cancer misdiagnosis that involved a NP and two physicians acting independently. In this matter, the court did not directly address the NP’s malpractice. However, in stating the standard of care utilized in this case, the court noted that “Medical testimony unequivocally establishes that the standard of care relevant to the diagnosis and treatment of breast lumps is uniform.” Thus, a uniform standard was applied to all health care professionals in this case, including the NP, in determining malpractice.

Likewise, the Supreme Court of Ohio held nurse practitioners to the standard of conduct for licensed nurse practitioners applicable to the community engaged in that occupation, even though nurse practitioners are presently authorized by statute to provide care only under supervision in selected sites within the state. See Berdyck v. Shinde 613 N.B. 2d 1014 (1993).

In another case addressing the activities of a nurse anesthetist who worked under a protocol and scope of practice agreement, the court held that neither the physician she worked with nor his corporation were responsible for her negligence:

The record shows that the nurse anesthetist who administered anesthesia. was acting independently and not under the direct supervision of a physician within the statute. Accordingly, no physician-shareholder could have been held liable for a nurse anesthetist’s negligence. (See Gersheeny v. Martin McFall Messenger Anesthesia Professional Association 539 So.2d 1131 [1989])

There has been only one case where physicians have been held accountable for an APN’s malpractice. In that case the physician was held accountable because Missouri, the state where the suit occurred, had enacted similar legislation to mandate physician responsibility for patient care. The case was Callahan v. Cardinal Glennon Hospital and St. Louis University, and it held the physician liable for inappropriate NP practice. Subsequently the law was changed in Missouri to recognize and authorize independent advanced nursing practice

CONCLUSION

To provide effective and comprehensive care, nurses, physicians and other health care professionals must collaborate with each other. No group can claim total authority over the other. Each profession exhibits different areas of professional competence that, when combined together, provide a continuum of care that the consumer has come to expect. The definitions of collaboration have not been structured to reflect true practice. Instead, at best, they reflect compromise, and at worst are conditioned and tailored to limit competition.

The issue of if, when, why, and how collaborative interprofessional relationships are to be written into state and federal law and regulation may continue to confront the nursing profession for some time to come. The issue is not just one of recognizing the parameters of nursing practice (and its evolution), but the impact of unnecessarily restrictive requirements on access to health care and the cost of health care services. These are issues that policy makers will need to revisit and confront as nurses, including APNs, continue to work to meet the expanding health care needs of individuals, families, and communities across the nation.

ENDNOTES

1. In 1903, North Carolina enacted the first nursing registration law.

2. New York enacted the first mandatory nursing licensure law and three other states (New York, New Jersey and Virginia) passed registration acts in the same year. By 1923, all the states then existing as well as the District of Columbia and Hawaii had enacted nurse licensure laws, modeled upon New York law.

3. When the New York statute was enacted in 1903, it included the one of the first legislative provisions which clearly distinguished between the practice of nursing and the practice of medicine and prohibited nurses from the practice of medicine without a license.

4. Safriet, B. J. (1992) and Hadley, E.A. (1989) touched on the concept that organized medicine attempted to confine nurses to a largely complementary and supervised role through the development of “all-inclusive medical scopes of practice.”

5. Hadley, ibid.

6. Although the 1903 New York nurse practice act did not include a scope, the language prohibiting nurses from practicing medicine was incorporated into the nurse practice act.

7. Pearson, L., (1998). V.

8. Delaware still retains setting distinctions.

9. Other states with the independent practice/prescriptive authority collaboration distinctions include: Colorado, Minnesota, Nevada and Oregon.

10. Maine incorporated such into the 1993 revisions to the nurse practice act, which incorporated independent practice for the established nurse practitioner.

(this article originally appeared in the Online Journal of Issues in Nursing (need issue/volume info) – Reprinted with permission)

REFERENCES

1. ANA. Testimony to the Physician Practice Review Commission, November, 1993.

2. ANA. Statement on Physician Supervision of Allied Health Professional Before the Practicing Physicians Advisory Council, Health Care Financing Administration, March 16, 1998.

3. ANA. Joint Regulation of Advanced Nursing Practice, 1997.

4. 40 American Jurisprudence 2d Hospital and Asylums, sec. 43 provides extensive discussion of case law on registered nurse and physician collaboration to provide care and make patient medical records.

5. Department of Health and Human Services. HCFA Medicare Carriers Manual, Part 3-Claims Process, May 1992.

6. HCFA Transmittal No. AB-98-15, April 1998.

7. Campbell-Heider, N., R.M. Kleinpell, and W.L. Holzemer. Commentary about Marchione and Gardland’s “An Emerging Profession? The Case of the Nurse Practitioner,” 1997.

8. Marchione, Joan, and T. Neal Garland. “Image: A Journal of Nursing Scholarship,” 29(4): 338-339.

9. Eubanks, P. “RN clears path for nurse-MD collaboration.” Hospitals 64(19): 68, 1990.

10. Eubanks, P. “Quality improvement key to changing nurse-MD relationship.” Hospitals 65(8): 26-30, 1991.

11. Eubanks, P. “Restructuring care: patient focus is key to innovation; Chicago’s Mercy meets patients’ needs rather than system’s routine.” Hospitals 65(15): 26-27, 1991.

12. Goldman, D.A., S.M. Andrews, S. Paternack, D.G. Nathan, and RH. Lovejoy. “A service chief model for general pediatric inpatient care and residence training.” Pediatrics 89:601-607, 1992.

13. Hadley, E.A. “Nurses and prescriptive authority: a legal and economic analysis.” American Journal of Law and Medicine 15:245- 299, 1989.

14. Hagland, M.M. “Restructuring care: patient focus is key to innovation; Penobscot Bay integrates acute, long-term, home care.” Hospitals 65(15): 28-29, 1991.

15. Knudsen, J.A., J.R. Rasch, T. Capriotti, P.W. Irvine, R. Matz, A. Zuger, D.E. Rubin, J.M. Bloom, and J.P. Kassirer. “Nurse Practitioners in Primary Care.” New England Journal of Medicine 330:1537-1540, 1994.

16. Pearson, L. “Annual -Update of How Each State Stands on Legislative Issues Affecting Advanced Nursing Practice.” Nurse Practitioner 23(1): 14-66, 1998.

17. Safriet, B.J. “Health care dollars and regulatory sense: the role of advanced practice nursing.” Yale Journal of Regulation 9:417- 488, 1992.

18. Sharer, J.L. “Putting patients first; hospital work to define patient-centered care.” Hospitals 67(3): 14-18, 1993.

19. Stein, J.I., D.T. Watts, and T. Howell. “The doctor-nurse revisited.” New England Journal of Medicine 322:546-549, 1990

20. Stone, E. L. “Pediatric Practice: How to survive and thrive in the changing health ca\re system.” Pediatrics 96 (Suppl): 844- 851, 1995.

Copyright Nevada Nurses Association Nov 2004