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Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine on and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

FAQ:  When may an APRN practice without a standard care arrangement or a physician assistant practice without a supervision agreement under SB 310?

By temporarily relaxing certain requirements from Chapters 4730, 4731, and 4723 of the Revised Code, S.B. 310 allows certified nurse-midwives, clinical nurse specialists, and certified nurse practitioners (“APRNs”) who are employed by or under contract with a hospital or other health care facility to “practice with a physician or podiatrist without having entered into a standard care arrangement with that physician or podiatrist, as long as the physician or podiatrist is continuously available to communicate with the nurse either in person or by electronic communication.” Any services performed by an APRN who has not entered into a SCA with a physician must be authorized by the hospital or health care facility within which the nurse is practicing.

Furthermore, S.B. 310 permits a physician assistant to practice without a supervision agreement if the if the physician assistant is employed by or under contract with a hospital or other health care facility and the services are authorized by a physician or podiatrist and by the hospital or other health care facility within which the physician assistant is practicing

These provisions are in effect until May 1, 2021.   

FAQ:  What qualifies as a “health care facility” under S.B. 310?

The term “health care facility” is not defined in S.B. 310.  However, the statutes and regulations governing physician assistant practice already defines “health care facility.”  Unfortunately, there is no such definition for APRNs.  

As an initial note, the term “health care facility” is defined in numerous other places in Ohio law.  The most common bond between the various definitions of “health care facility” in other Ohio statutes and regulations, appears to be the concept that a “health care facility” is a facility providing health care services and is not a practitioner’s office.  Each location will need to be evaluated on a case by case basis to determine whether it can be considered a “health care facility.” 

Under the statute governing physician assistant practice, ORC 4730.01(B), "Health care facility" means any of the following:

(1) A hospital registered with the department of health under section 3701.07 of the Revised Code;

(2) A health care facility licensed by the department of health under section 3702.30 of the Revised Code;

(3) Any other facility designated by the state medical board in rules adopted pursuant to division (B) of section 4730.08 of the Revised Code.

It is possible that the APRN definition of “health care facility” could be construed broadly by the Ohio Board of Nursing.  However, lacking further guidance from the Ohio Board of Nursing, it seems reasonable that APRNs could use an interpretation of “health care facility” that is similar to the definition found in physician assistant practice.

FAQ:  What else does S.B. 310 do?

In addition to the suspension of standard care arrangement and supervision agreement requirements in certain circumstances, S.B. 310 also permits emergency medical technicians to administer a test for COVID-19, respiratory care professionals to direct the practice of a licensed practical nurse, and retired or inactive health care professionals including nurses, pharmacists, physician assistants, physicians, podiatrists, respiratory therapists or EMTs to practice under a temporary license.

FAQ:  What are the requirements under S.B. 310 for a retired or inactive health care professional to practice under a temporary license?

To practice temporarily, a health care professional: (1) must have held a license or certificate to practice issued by a licensing board in the five-year period immediately preceding December 29, 2020 and (2) within that five years, the professional’s license or certificate expired or became inactive, which may have occurred because the professional retired from practice. A temporary license will not be extended to any professional whose license was revoked or suspended or who surrendered their license in order to avoid disciplinary action.

FAQ:  Does S.B. 310 change an APRN’s or physician assistant’s scope of practice?

No. The language in S.B. 310 does not change the scope of practice of an APRN or a physician assistant. For example, S.B. 310 does not limit the authority of an APRN or physician assistant to administer, deliver, or distribute drugs pursuant to a protocol implemented under section 3701.048 of the Revised Code following the declaration of an emergency that affects the public health. However, S.B. 310 also does not expand an APRN’s or physician assistant’s scope of practice beyond the services and procedures they have the knowledge, skill, and ability to perform.

FAQ:  When do the S.B. 310 changes expire?

As stated above, the changes provided by S.B. 310 are only temporary and will expire on May 1, 2021.

For questions regarding S.B. 310 or other matters affecting advanced practice providers, please contact BMD Healthcare and Hospital Law Member Jeana M. Singleton at jmsingleton@bmdllc.com or 330-253-2001, Attorney Ashley Watson at abwatson@bmdllc.com, or any member of the BMD Healthcare and Hospital Law group.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.