As part of a flurry of activity at the end of 2016, Public Act 379 was enacted by the Michigan legislature and signed by Governor Snyder. That Act amends various provisions of the Michigan Public Health Code regarding the professional relationship of physician assistants ("PAs") with physicians and podiatrists and the professional independence of PAs. The Act's provisions take effect on March 22, 2017. Physician practices and other entities that employ PAs will need to address these changes by that date.
Professional Relationship between PAs and Physicians
Previously, Michigan law required PAs to work under the supervision and delegation of a physician or a podiatrist. The new Act deletes those terms from the Michigan Public Health Code. For example, while a PA still cannot practice except through a specified association with a physician or a podiatrist, the general intent behind these changes is to create a legal structure that fosters a more collaborative approach to patient care between PAs and physicians and that authorizes greater independence and autonomy for PAs treating patients within their general scope of practice. As part of that, the Act deletes an existing statutory provision prohibiting a physician from delegating ultimate responsibility for medical care services to a PA. Two practical effects of these changes are that a physician is no longer required to countersign a PA's orders as part of a patient's medical chart and that a PA may sign certain official forms without a physician's co-signature when the PA has treated the patient.
PAs as Independent Prescribers
Another significant change under this Act is that PAs are now included as independent prescribers for purposes of Michigan pharmacy regulations and can thus issue prescriptions under their own names and dispense complimentary starter doses without physician supervision or delegation. Formerly, a prescription written by a PA had to be authorized by a physician and issued under the name (and, if applicable, the DEA number) of both the PA and the physician. A PA can now also obtain his or her own Michigan controlled substance license in addition to a DEA license and prescribe permitted controlled substances in his or her own name. While application forms are already available for Michigan PA controlled substance licenses, they will not be approved before March 22. Although the new changes do not place additional limits on drugs that PAs can prescribe, Michigan law still prohibits PAs from prescribing medical marijuana and abortive drugs.
Mandatory Practice Agreements
Instead of being subject to the supervision and delegation of a physician or a podiatrist, the Act mandates that a PA must now enter into a "practice agreement" with a participating physician or podiatrist. Without such a practice agreement, a PA may not practice in Michigan after March 22. Likewise, a physician group practice or other entity that employs PAs must have such an agreement in place by that date with each PA that it employs. A practice agreement does not have to be submitted to any agency, but it must be signed and dated by the PA and the participating physician or podiatrist and made available upon request by an appropriate governmental agency.
The practice agreement must be between a PA and an individual participating physician or podiatrist. A group practice can, however, designate one or more of its physicians or podiatrists to enter into practice agreements with PAs. In other words, a PA does not have to have a separate practice agreement with each physician of a group practice; instead, one or more designated physicians of the practice may enter into such agreements with the PAs employed by a practice to satisfy this requirement.
The main purpose of the practice agreement is to identify the respective duties and responsibilities of the PA and the participating physician or podiatrist. The practice agreement cannot include any duty of a PA that he or she is not qualified to perform by education, training, or experience or that is not within the scope of the PA's license. The practice agreement can, however, include additional limitations on a PA's scope of practice as part of his or her employment with a group practice. For example, even though a PA is legally authorized to prescribe independently, a physician practice can still impose additional limits on a PA's ability to prescribe for the group's patients as part of a practice agreement.
The practice agreement must specify a process between the PA and the participating physician or podiatrist for communication, availability, and decision-making for providing medical treatment to patients that takes into account the knowledge and skills of the PA based on his or her education, training, and expertise. The practice agreement must also contain a protocol for designating an alternative physician for consultations in situations when the participating physician is not available. As part of the practice agreement, the participating physician must verify the PA's credentials. The practice agreement must also require notice of at least 30 days by either party before termination.
Nothing in the Act prohibits an employment agreement with a PA or an addendum to an employment agreement from containing the provisions required for a practice agreement. Depending on the associated details and the approach of a practice, a separate practice agreement may make sense in many situations especially because of the requirement that a practice agreement can be terminated only with at least 30 days' notice.
Under the provisions of the Act, the failure to practice in accordance with the terms of a practice agreement can be the basis for disciplinary action under the Public Health Code against a PA, a physician, or a podiatrist. In addition, an applicable licensing board may prohibit a PA, a physician, or a podiatrist from entering into a practice agreement due to violations of the Public Health Code.
Physician/PA Ratio and Licensing Board Authority
Under current regulations, a physician can supervise a maximum of four PAs (only two if the oversight involves more than one practice site without in-person supervision). The Act eliminates that restriction and replaces it with a directive to the Michigan Board of Medicine, in consultation with the Michigan Board of Osteopathic Medicine and Surgery and the Michigan Board of Podiatric Medicine and Surgery, to consider whether to impose a new maximum ratio of PAs to participating physicians or podiatrists as part of a practice agreement. Until new regulations are developed, the Act generally limits a participating physician or podiatrist to a reasonable standard of practice with respect to the number of PAs under his or her oversight. The Act also authorizes those boards to prohibit PAs from providing certain medical services and to restrict certain medical services only to physicians or podiatrists if those services require extensive medical training, education, or ability or pose serious risks to the health or safety of patients.
Under existing law, a physician or podiatrist must supervise a physician assistant's medical services and the services provided by the PA must be delegated by the supervising physician. This results in nearly automatic liability of a physician (and a physician practice) for the actions of a supervised PA.
While the new Act does not explicitly address the liability of a physician or a podiatrist for the services of a PA, it does establish a more independent scope of practice for PAs. As a result, physicians and podiatrists should not have the same broad automatic liability for the actions of a PA (although, as the employer of record, a physician practice remains legally liable for the actions of its employees, including PAs). It seems likely, however, that efforts will be made to use the existence of a practice agreement and the associated relationship between a PA and a participating physician or podiatrist to try to establish liability of a participating physician or podiatrist for the actions of a PA. In addition, a physician who consults with a PA regarding a particular patient matter faces potential liability for any resulting bad outcome just as when a physician consults with another physician. This is sure to be the subject of future litigation and court rulings.
Professional Liability Insurance
Some professional liability carriers already issue separate policies for PAs. With some carriers, PAs are covered for malpractice claims by being named as additional insured parties to a physician's professional liability policy. The changes under the Act that expand the independence of PAs may result in the more widespread use of individual policies for PAs. Physician practices that employ PAs should review this issue with their malpractice carriers.
Billing and Reimbursement
Under existing billing practices, a physician assistant may bill Medicare under his or her own name for covered services provided to a Medicare patient. In that case, the services are reimbursed at a lower rate. (If the applicable incident-to rules are followed, a PA's services to a Medicare patient can instead be billed under the supervising physician's name and reimbursed at the physician's rate.) Commercial payors vary in their approach, with some reimbursing separately for services provided by PAs while others do not.
The Act is silent regarding billing and reimbursement matters and, as a state law, will not have any impact on Medicare reimbursement. As a result, the Act itself will not change billing or reimbursement for PAs. But the Act's expansion of the independent scope of PA practice may lead commercial payors conducting business in Michigan to reevaluate how they handle billing and reimbursement for services provided by PAs.
Rounding and House Calls
Currently, a PA may round on patients or make house calls only under the supervision of a physician. That restriction has been replaced, and a PA is now permitted to perform those services independently in accordance with a practice agreement.
Implications for Physician Group Practices
Physician group practices and other entities that employ PAs should begin addressing these matters soon to allow enough time to implement these new requirements before March 22.
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