Member Article

• AB 890 gave Nurse Practitioners who meet certain requirements authority to practice more independently. The bill created two categories of Nurse Practitioner—one that may perform delineated functions without the use of standardized procedures in certain clinical settings where physicians and surgeons practice and another that may perform these functions and more outside of such clinical settings. Technically, Nurse Practitioners meeting the requirements of the second category will be able to practice outside of the limited clinical settings without standardized procedures beginning January 1, 2023, however, the Board of Registered Nursing has yet to finalize regulations that are expected to clarify many of the requirements in the bill. This may delay implementation.
• AB 890 also added Nurse Practitioners to the peer review reporting requirements of Section 805. The bill updated the definition of "licentiate" to include Nurse Practitioners such that reports will need to be made to the Board of Registered Nursing when certain actions against a Nurse Practitioner are taken for a medical disciplinary cause or reason.
• As a result of this bill certain Nurse Practitioners may seek to transition to membership on the medical staff in the future as they begin to meet the criteria to practice more independently under AB 890.

Opportunity for More Independence for Nurse Practitioners

Previously, although Nurse Practitioners have had more clinical independence than Registered Nurses, California law limited their extended scope of practice to implementation of standardized procedures with physician oversight. On September 29, 2020, Governor Newsom signed Assembly Bill 890 authorizing two new pathways to more independent practice for nurse practitioners. Under AB 890 Nurse Practitioners who meet specific criteria and have the required years of experience will be eligible to practice without standardized procedures either in certain clinical settings or independently. AB 890 took effect on January 1, 2021, but full implementation for both pathways is not expected until on or after January 1, 2023. The Board of Registered Nursing ("BRN") is required to create additional guidance to assist in full implementation. Although the BRN has made progress, implementing regulations are not yet complete.

Nurse Practitioners who meet the requirements for either pathway under AB 890 will have the authority to undertake the following specified functions:

1. Conduct an advanced assessment;
2. Order, perform, and interpret diagnostic procedures;
3. Order diagnostic radiologic procedures and utilize the findings or results in treating a patient;
4. Establish primary and differential diagnoses;
5. Certify disability after physical examination;
6. Delegate tasks to a medical assistant; and
7. Prescribe, order, administer, dispense, procure, and furnish therapeutic measures, including controlled substances, among other pharmacological and non-pharmacological interventions.

Nurse practitioners who qualify for the first pathway will be authorized to perform the specified functions in an organizational or other setting, where the nurse practitioners practice alongside one or more physicians or surgeons. Those settings include, but are not limited to, a clinic, hospital (except state hospital), medical group practice, and home health agency. The authority for this expanded practice comes from California Business and Professions Code Section 2837.103 ("Section 103"). Section 103 Nurse Practitioners must complete a three-year transition to practice in California before they are eligible to engage in this expanded authority. The BRN has not yet finalized regulations clarifying the requirements of that transition to practice period.

The second pathway to independent practice, under Business and Professions Code Section 2837.104 ("Section 104"), becomes effective January 1, 2023. Nurse practitioners who meet the prerequisites under this section may perform the specified functions outside of the settings listed in Section 103 and are also eligible for membership on the medical staff.

Section 104 Nurse Practitioners are not required to practice alongside physicians. They must, however, collaborate with other healing arts providers based on the clinical condition of the patient and consistent with individual protocols. Consultation and collaboration is required in certain circumstances, including for emergent conditions requiring prompt medical intervention after initial stabilizing care has been started, acute decompensation of the patient's situation, for a problem that is not resolving as anticipated, when the history, physical, or lab findings are inconsistent with the clinical perspective, and upon the request of the patient. Section 104 Nurse Practitioners must also have in place a referral plan for complex medical cases and emergencies and "an identified referral plan specific to the practice area."

Two Pathways to Independent Practice

Section 103 requires the following be satisfied prior to independent practice:

1. Pass a national nurse practitioner board certification examination and, if applicable, a supplemental examination developed on or before January 1, 2023;
2. Hold a certification as a nurse practitioner from a national certifying body accredited by the National Commission for Certifying Agencies or the American Board of Nursing Specialties and recognized by the Board of Registered Nursing;
3. Provide documentation that educational training was consistent with standards established by the Board of Registered Nursing (under section 2836) and any applicable regulations relating to the requirements for clinical practice hours; and
4. Complete a "transition to practice" in California of a minimum of three full-time equivalent years of practice or 4600 hours. The specific requirements of the "transition to practice" have not yet been established by the Board of Registered Nursing.

Section 104 requires the following be satisfied prior to independent practice:

1. Meet requirements of a Section 103 Nurse Practitioner above;
2. Hold a valid, active California registered nursing license, and have a master's degree in nursing or in a clinical field related to nursing or a doctoral degree in nursing; and
3. Have practiced in good standing for at least three years, not inclusive of the transition to practice required by Section 103.

AB 890's Impact on Existing Medical Staff Framework

A key change promoted by AB 890 is the expanded role nurse practitioners may have with respect to the medical staffs and hospital committees where they work. Both Section 103 and Section 104 Nurse Practitioners must adhere to all applicable bylaws of the medical staff and governing body for the organization in which they work. Section 103 and 104 Nurse Practitioners may attend meetings of their assigned department, but a Section 103 Nurse Practitioner may not vote at department, division, or other meetings unless the vote is regarding (1) the determination of nurse practitioner privileges with the organization, (2) peer review of nurse practitioner clinical practice, (3) whether a licensee’s employment is in the best interest of the communities served by a hospital, or (4) the vote is otherwise allowed by the applicable bylaws. Section 104 Nurse Practitioners are eligible for membership on the medical staff and may vote at meetings of the department to which they are assigned.¹

AB 890 also amended Business & Professions Code Section 805 to include Section 103 and 104 Nurse Practitioners within the definition of "licentiate" for the purpose of mandatory reporting requirements for nurse practitioners whose privileges are terminated, revoked or restricted, or who have resigned, withdrawn or abandoned their application for privileges or request for renewal as provided in Section 805. Because of the change in definition of "licentiate," Section 103 and 104 Nurse Practitioners are also subject to the mandatory reporting requirements under Business and Professions Code Section 805.01.

Nurse Practitioners are also now included in Business and Professions Code Section 805.5. This means entities considering granting or renewing privileges to Nurse Practitioners must first request from the Board of Registered Nursing any reports that may have been submitted under Section 805.

Notably, AB 890 did not amend Business & Professions Code Sections 809 et seq. concerning the right to notice and opportunity to be heard in connection with any peer review body's decision to discipline the licentiate.

Preparing the Medical Staff for the Impact of AB 890

Regulations defining practice standards and any additional testing requirements are taking longer than expected. As a result, there remains a lack of certainty as to the standard of practice and the specifics of the "transition to practice," including whether nurse practitioners will be required to pass an additional certifying exam. Regardless of whether the regulations are released by January 2023, hospitals and health systems can begin to identify the particular departments within the hospital in which nurse practitioners currently practice and consider how independent practice will affect those departments.

Assessing whether your Medical staff bylaws need to be amended to address changes to the composition of the medical staff and increased participation of nurse practitioners on committees and in clinical departments may also take time. Bylaws may also need to be amended to ensure that the medical staff has the resources to assess the qualifications of any nurse practitioners transitioning to independent practice.

Hospitals may also want to consider providing educational sessions to the medical staff regarding the changes to the law and, in particular, the implications for the medical staff membership, committee structure, and voting.

While it remains to be seen how hospital practice for Section 103 and 104 Nurse Practitioners will unfold once regulations are finalized, it is clear that they may not practice beyond the privileges granted to them by a hospital. For now, the Board of Registered Nursing is collecting written comments on its proposed rulemaking action; after November 1, 2022, the Board may adopt or modify its proposed regulations giving everyone additional information regarding the processes for Section 103 and 104 Nurse Practitioners.

[1] The associated regulations have not been updated and currently contradict the statute. See, e.g., 22 Cal. Code Regs. § 70703.