Maine Revises Physician Assistant Licensing Requirements and
Physician Licensing Boards Seek Comments on New Rules
This past spring, the Legislature passed “An Act To Improve Access to Physician Assistant Care”[1] changing how physician assistants (“PAs”) are licensed and their relationships with physicians, and permitting them to practice independently in certain circumstances. The new statute eliminates the physician supervision requirement and opens the door for experienced PAs to practice more independently. The statute replaces the requirement for PAs to have supervision agreements with physicians. These agreements are replaced with “collaborative agreements,” “practice agreements,” and “scope of practice agreements”. In addition, PAs are no longer referred to as “registered.” Now they are “licensed.” The statute also directs the Board of Licensure in Medicine and the Board of Osteopathic Licensure (the “Boards”) to revise its joint rule on PAs to bring it into conformity with the new law.[2] Any comments on the proposed rules (which were revised following an earlier comment opportunity) need to be submitted to the Boards by October 30, 2020 at 4:30 pm.
These changes present a significant shift in the relationships PAs have with physicians and employers. The following is a summary of these changes:
PAs are no longer required to have a supervision agreement with physicians under which the physician agrees to be responsible for all of the medical activities of the PA. The PA-physician relationship is now based more on collaboration than supervision. Additionally, the PA is fully liable for the PA’s medical services rendered within the PA’s scope of practice. Previously, the physician was fully responsible and liable for the PA’s acts. A potential consequence of this change is that physicians may not be liable for certain activities of the PAs with whom they collaborate. However, a physician may still be liable if the physician’s acts or omissions with respect to collaboration with the PA results in harm to the patient.
A newer PA with fewer than 4,000 hours of clinical experience must have a “collaborative agreement” with a physician but, under certain circumstances (explained below), such a PA may instead have a “scope of practice agreement”.
A “collaborative agreement” is a written agreement between a PA and physician
that describes the PA’s scope of practice and the decision-making process of the
PA’s health care team, including communication and consultation among team
members. The scope of practice is determined by the PA’s education and
experience as well as practice setting. PAs working in health care facilities
will have their scope of practice determined through the credentialing and
privileging process.
These PAs may instead have a “scope of practice agreement” if the PA works in a
physician group practice setting or a health care facility setting under a system of
credentialing and privileging. “Scope of practice agreement” is not defined in the
statute or in the draft rules promulgated by the Boards.
A PA with over 4,000 hours may be a principal clinical provider in a practice without a physician if the PA has a “practice agreement”. This is a written agreement between a PA and physician establishing the PA’s scope of practice and states that the PA may consult with the physician. Practice agreements are intended to be used for experienced PAs who practice independently.
The statute is silent on the treatment of PAs with over 4,000 hours of clinical experience who do not practice independently. The Boards are currently promulgating rules that expand on the new statute and attempt to fill this gap.
The draft rules state that PAs who (i) have more than 4,000 hours of clinical
practice, (ii) are employed by a “health care facility”[3] or “physician group
practice”[4] with a system of credentialing and granting of privileges, and (iii)
have a “scope of practice agreement,” are not required to have either a
collaborative agreement or a practice agreement.
An issue raised by the draft rules is how to treat experienced PAs who do not
practice independently, but are not employed by either a “health care facility”
or a “physician group practice”, or PAs employed by one of these two types of
entities that does not have a system of credentialing and privileging. This
potentially encompasses a large number of health care providers. They would
include solo physician practices. They may also include unlicensed facilities,
such as FQHCs. Providers that do not grant privileges, which may include
nursing facilities, hospices, home health agencies, and physician practices,
are also potentially affected. These potentially affected providers may consider
submitting comments to the Boards directly or through their associations.
Again, any comments need to be submitted to the Boards by
October 30, 2020 at 4:30 pm.
***
Providers that employ or contract with PAs, and insurers that credential PAs, should study these changes closely. In addition to needing to enter into collaborative agreements, practice agreements, or scope of practice agreements with their PAs, these changes will very likely require:
Providers and insurers to revise their credentialing and privileging criteria;
Providers to revise their employment and professional services agreements with PAs; and
Hospitals to revise their medical staff bylaws.
If you have any questions about this new statute, the draft rules, or their implications, or if you would like assistance with submitting comments to the Boards, please contact Mike Burian, Joe Kozak, Steve Johnson, or Charlie Dingman at Kozak & Gayer.
______________________________ [1] Available at: http://legislature.maine.gov/legis/bills/bills_129th/chapters/PUBLIC627.asp. [2] Available at: http://www.maine.gov/tools/whatsnew/attach.php?id=3356004&an=1. [3] Defined as a “facility, institution or entity licensed pursuant to [Maine] law that offers healthcare to persons in [Maine]. . . .” [4] Defined as “an entity composed of 2 or more physicians that offers healthcare to persons in [Maine] and that has a system of credentialing and granting of privileges to perform health care services and follows a written professional competence review process.”