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Welcome to my healthcare law update, where I provide recent and relevant legal developments within the healthcare industry. This edition provides information on recent changes to the scope of practice and Medicare payment rules for nurse practitioners and physician assistants, which support the trends in the expansion of roles for advanced practice practitioners in the delivery of healthcare. Read on for more.

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Jeanne L. Vance


Weintraub | Tobin



Legal Developments Support Trends in Expanded Use of

Advanced Practice Healthcare Practitioners

I have been in healthcare legal practice since the mid-1990s. During a summer in law school, I worked for the California Legislative Counsel Bureau, which is the agency that serves as legal counsel to the California legislature. During my stint there, I recall various healthcare licentiates arguing about whether to expand the practice of non-physicians, with physicians generally asserting that such changes would be detrimental to healthcare quality and the other healthcare licentiates arguing that they provide a quality service at a more reasonable price-point. This same tension has woven its way through legislative and payment policy during the intervening decades with the same arguments being advanced.

However, during that time we have seen the gradual increase in the scope of practice of non-physician advanced practice professionals such as nurse practitioners (“NPs”), physician assistants (“PA”), and certified nurse-midwives. These trends are evidenced by several recent legal developments both in Medicare payment policy and California state law.

Medicare Removes Cumbersome PA Practice Restrictions and Separate Supervision Standard for Medicare Payment

Implementing Section 403 of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260, December 27, 2020), the 2022 Medicare Physician Fee Schedule removed practice restrictions that required Medicare to only pay the qualified employer of a PA for Medicare services. This restriction presented an issue in revenue cycle mapping for complex healthcare organizations where an entity other than a medical group would be the logical biller for physician assistant services. This development comes a year after changes to the Medicare supervision rules for PAs requiring PAs to be supervised by physicians under the supervision laws of the relevant state rather than imposing a separate supervision standard. (See 42 C.F.R. Section 410.74(a)(2)(iv).)


At the same time that these Medicare standards were updated, California liberalized its PA supervision rules to make them much less technical and complex. Previously, California required that a physician supervise a PA through one of the following four methods: (1) establishing detailed written protocol meeting technical criteria plus having the physician sign 10% of the PA’s charts; (2) the physician saw the patient on the same day as the PA; (3) the supervising physician signed every PA chart; (4) or other methods not specified by the Physician Assistant Board. (See Cal. Bus. & Prof. Code 3502 and 16 Cal. Code Reg. 1399.545 in effect in 2019.) Now, California permits a more flexible approach where the PA and his or her supervising physician determine the scope and method of supervision within a practice agreement, and the physician must be available by phone or electronic communication method at the time a PA examines a patient. (See current Bus. & Prof. Code 3501, et seq.)

These changes will make it easier for PAs, their supervising physicians and the organizations that provide PA services to make expanded use of PAs because the legal structural requirements have been simplified. At times, certain organizations in the past may have found the technical requirements for using a PA to be overly difficult to implement in a compliant fashion.

California Enacts Legislation to Allow Full Independent Practice for NPs

NPs in California have historically practiced under standardized procedures to perform certain overlapping medical functions such as ordering durable medical equipment, certifying disability, approving or modifying a treatment or plan of home health care, furnishing certain drugs or devices, and furnishing buprenorphine. (See Cal. Bus. & Prof. Code 2835.7, 2836.4 (immediately prior to January 1, 2020). California AB 890 (Reg. Sess. 2019-2020) established a pathway for NPs to qualify for independent practice. These statutes were effective January 1, 2021. An NP who seeks to engage in this independent practice must pass a national board certification exam (and potential supplemental exam), hold a certification from an accreditation agency, provide documentation of required educational training, and have completed a transition to practice in California that is a minimum of three full-time equivalent years of practice or 4600 hours. (Cal. Bus. & Prof. Code 2837.103.)

An NP meeting these requirements will be able to provide selected services independently, without standardized procedures, if the services are performed in a clinic, a health facility, certain county medical facilities, a medical group practice, a home health agency, or a hospice facility. In these locations, an NP will be able to perform any of the following:

  1. An advanced assessment;
  2. Order, perform, and interpret diagnostic procedures;
  3. Establish primary and differential diagnoses;
  4. Prescribe, order, procure, and furnish therapeutic measures;
  5. Certify disability after performing a physical examination; and
  6. Delegate tasks to a medical assistant.

Starting January 1, 2023, an NP may perform those same services outside of the settings set forth above if he or she possesses a certification from the California Board of Registered Nursing. To qualify for this certification, the NP must have a master’s degree in nursing and have practiced an additional three years, not including the “transition to practice” years.  

The Board of Registered Nursing will need to adopt regulations to implement these sweeping new changes.

We can expect these trends to continue due to the systemic challenges of healthcare costs that escalate more rapidly than the cost of increases in wages and inflation. Advanced practice healthcare professionals can provide many of the services provided by physicians at a meaningfully lower cost.

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