With the passage of House Bill 2279 by the 2022 Kansas Legislature there is a lot of confusion about this new law regarding Advanced Practice Registered Nurses (APRNs). To address the most common questions we receive, we have started this Frequently Asked Questions resource at www.kmsonline.org/APRN. It will be a living document as circumstances develop.
— Last updated Sept. 17, 2022
Q1: When does the new law take effect, and what is the status of the regulations that implement the changes in the law?
A: The new law took effect July 1, 2022, and the Board of Nursing has now approved the permanent regulations which implement the new law. Effective immediately, those regulations eliminate the legal requirement for written prescribing protocols and collaborative practice agreements (CPAs) for APRNs.
In addition, while the Board of Nursing has testified that their new regulations made no change to APRN scope of practice, KMS and others have expressed concern that some of the new regulations exceed what was authorized by the new law, and allow an APRN to practice medicine. For example, one of the new regulations reads as follows: “Each APRN shall be authorized to make independent decisions about advanced practice nursing needs of families, patients, and clients and medical decisions (emphasis added).” Another regulation allowed APRNs to “develop and manage the medical plan of care for patients… (emphasis added). KMS opposed these regulations and the others like it and urged the Board of Nursing to amend the regulations to eliminate the references to “medical”. The Board did not make any changes to their proposed regulations, and they took effect as promulgated.
Q2: Can an ARPN now practice independently and, if so, are there any limitations on what they can do?
A: APRNs have always been able to practice advanced practice nursing independently, but without a physician-authorized prescribing protocol or a collaborative practice agreement, their ability to practice independent of physician supervision or delegation was somewhat limited in scope. The recent changes in the law and regulations did eliminate the requirement that APRNs have a physician-authorized prescribing protocol, as well as collaborative practice agreements. APRNs are now able to prescribe drugs (including controlled substances) and durable medical equipment (DME) in their practice without having to obtain a written protocol with a physician. The only limitation on prescribing is that APRNs cannot prescribe any drug intended to cause an abortion. The recent legislation only explicitly authorized the prescribing of drugs and DME, and did not authorize APRNs to perform any other services that constitute the practice of medicine and surgery that are not legally delegated or ordered by a physician. As noted above (Q1) there is concern that the Board of Nursing implemented regulations that go beyond what was authorized by the recent changes in law. This point is likely not going to be resolved satisfactorily until the legislature or the courts provide some clarification.
Q3: Can I still require a CPA or other employment agreement for APRNs in my practice?
A: The new law and regulations do not prohibit collaborative practice agreements, prescribing protocols, or any other formal practice agreements. It only eliminated the requirement of a prescribing protocol and CPA. Even though the new regulations eliminate the legal requirement for CPAs, there is nothing in the law that would prevent an APRN from entering into a collaborative practice or other practice agreement with a physician, a physician clinic, hospital, or other health care facility. Parties have a right to enter into such contractual arrangements with anyone they employ or contract with, including an APRN. That employment arrangement can utilize a collaborative practice agreement; employment agreement or other practice agreements; written protocols or other formal policies that set out the clinical limitations, scope of practice, terms and conditions of the APRN’s employment, or contractual relationship with the practice or facility.
Q4: Under the new law, can a physician still supervise or delegate authority to an APRN? How does the new law affect physician-APRN relationships in hospitals or other health care facilities?
A: Consistent with current practice, a physician may still provide direction, supervision, or delegation of authority to perform acts that constitute the practice of medicine and surgery to an APRN, such as ordering tests, imaging, procedures, or other health care services. All clinical facilities — including physician clinics, hospitals, or other health care facilities — should consider reviewing and establishing clinical policies that identify those services that will continue to require physician direction, supervision, or delegation of authority to an APRN, and those services that the APRN can provide independently, consistent with the facility’s responsibilities to its patients (see Q5 below).
Q5: Does the legislation allow APRNs to diagnose, treat, and prescribe without any physician direction or oversight?
A. Prior to passage of HB 2279, Kansas law required physician involvement in the form of a prescribing protocol and collaborative practice agreement (CPA) in order for an APRN to diagnose, treat, or prescribe. The only change specifically authorized by HB 2279 was limited to the requirement that in order to prescribe drugs an APRN must enter into a written prescribing protocol with a physician. That requirement was the only element which was specifically eliminated by the bill. The legislation was silent on the broader issue of collaborative practice agreements, but the Board of Nursing also eliminated them as a mandatory requirement with the regulatory changes it adopted.
The legislation also amended a key provision of the nurse practice act which relates to APRN practice. In the section directing the Kansas State Board of Nursing to adopt regulations relating to APRN practice (K.S.A. 65-1130, subsection (c)), the legislature made it clear that the regulations must be consistent with the nurse practice act. The nurse practice act at K.S.A. 65-1113 subsection (b) defines “diagnosis” in the context of nursing practice means “that identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen and shall be construed as distinct from a medical diagnosis”. Additionally, the nurse practice act defines “treatment” as “the selection and performance of those therapeutic measures essential to effective execution and management of the nursing regimen, and any prescribed medical regimen [emphasis added].
In other words, the nurse practice act still clearly distinguishes between the practice of nursing and the practice of medicine, and — with the exception of prescribing drugs and durable medical equipment by APRNs — nothing in HB 2279 changes that distinction. For example, while the new law authorized APRNs to prescribe drugs and DME, it was silent on whether APRNs could order or perform laboratory or imaging services, invasive tests or procedures, or perform surgery. Until either the courts or the legislature provides more clarity on the limits of APRN scope of practice, it may be prudent for clinics, hospitals, or other facilities that currently require APRNs to have a CPA or other employment agreement that sets forth practice parameters and/or limits to wait to make changes until the potential liability and other practice issues are sorted out more conclusively.
Q6. Am I still liable for the actions of the APRNs that I employ in my practice?
A. Notwithstanding the new law and regulations, if you employ or contract with, or supervise or sign off on the care provided by an APRN in any clinical site, you are most likely going to be at least partially if not wholly responsible for the care they provide to patients pursuant to the supervision or delegation you provide, unless there are mitigating circumstances, which would be very fact-dependent on the clinical situation, the supervisory documents in effect, reporting relationships, etc.
Q7. Do my employed APRNs have to have their own medical malpractice insurance policy, or can I continue to cover them in my corporation’s policy?
A. You will have a choice, just as you do currently. Some practices obtain individual medical malpractice policies for their employed APRNs, while others cover the APRNs in the corporation’s overall liability policy as an “additional insured.” There is no right or wrong answer to this question, it is just a business decision that has cost considerations, as well as practice considerations. In any case, as an employer you would likely want to have written policies about whether your clinical employees can work or “moonlight” outside of your practice, which will also have liability insurance implications and perhaps cost considerations.
Q8. What malpractice policy limits do the new law require for APRNs to carry?
A. The new law does not specify how much malpractice coverage an APRN must obtain. The law only says that the APRN “shall maintain malpractice insurance coverage as a condition of rendering professional clinical services.” The APRN must provide proof of coverage at initial licensure and each renewal thereafter. All physicians must carry a minimum of $1 million coverage, but no such limit is required for APRNs, with the exception of nurse midwives and nurse anesthetists, who are required to participate in the Health Care Stabilization Fund. If your practice employs APRNs you should consult with your insurance provider about what makes sense for your particular situation. In all probability, they are likely to recommend that you also provide similar insurance limits for APRNs that you choose to provide an individual policy for.
Q9: Are APRNs required to be covered by the Health Care Stabilization Fund (HCSF)?
A. Of the four categories of APRN (nurse practitioner, nurse anesthetist, nurse midwife, and clinical nurse specialist) only nurse anesthetists and nurse midwives are required to be covered by the HCSF. Nurse practitioners and clinical nurse specialists may not be covered by the HCSF, as they are not included in the list of “defined healthcare providers” that are required by law to be covered by the HCSF.
