PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 29.14 and 64.5 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6509(9) and 6902(3); L. 2014, ch. 56, part D
Subject:
Nurse Practitioner Collaborative Relationships.
Purpose:
To implement part D of chapter 56 of the Laws of 2014.
Text of final rule:
1. Subdivision (a) of section 29.14 of the Rules of the Board of Regents is amended, effective January 1, 2015, to read as follows:
(a) Unprofessional conduct in the practice of nursing shall include all conduct prohibited by sections 29.1 and 29.2 of this Part, except as provided in this section, and shall also include the following:
(1) …
(2) …
(3) Failure by a nurse practitioner to comply with either the requirements relating to collaboration with a physician of paragraph (a) of subdivision (3) of section 6902 of the Education Law or the collaborative relationships requirements of paragraph (b) of subdivision (3) of section 6902 of the Education Law.
2. Subdivision (g) of section 64.5 of the Regulations of the Commissioner of Education is added, effective January 1, 2015, to read as follows:
(g) Collaborative relationships.
(1) Definitions. As used in this subdivision:
(i) Collaborative relationships shall mean that a nurse practitioner communicates, in person, by telephone, or through written means including electronically, with a physician who is qualified to collaborate in the specialty involved, or in the case of a hospital, the nurse practitioner communicates with a physician qualified to collaborate in the specialty involved and who has privileges at such hospital, for the purposes of exchanging information, as needed, in order to provide comprehensive patient care and to make referrals, as necessary.
(ii) Physician shall mean a New York State licensed and registered physician.
(iii) Hospital shall mean a hospital as defined by Public Health Law section 2801(1).
(2) Notwithstanding any provision in this section to the contrary and insofar as authorized by Education Law section 6902(3)(b), in lieu of complying with the requirements relating to collaboration with a physician, collaborative practice agreements and practice protocols as set forth in subdivisions (a), (b), (c), (d) and (e) of this section, a nurse practitioner may have collaborative relationships, with one or more physicians or a hospital, as such terms are defined in paragraph (1) of this subdivision, provided that the following criteria are met:
(i) The nurse practitioner shall have more than three thousand six hundred hours of experience practicing as a licensed or certified nurse practitioner pursuant to the laws of New York or any other state or as a nurse practitioner while employed by the United States Veterans Administration, the United States Armed Forces or the United States Public Health Service.
(ii) The nurse practitioner shall complete and maintain a form, prescribed by the department, to which the nurse practitioner shall attest, that describes the nurse practitioner’s current collaborative relationships. The nurse practitioner shall also acknowledge on the form that if reasonable efforts to resolve any dispute that may arise with the collaborating physician, or, in the case of a collaboration with a hospital, with a physician qualified to collaborate in the specialty involved and having professional privileges at such hospital, about a patient’s care are not successful, the recommendation of the physician shall prevail. The form shall be updated as needed and may be subject to review by the department, upon its request.
(iii) In addition to the form required by subparagraph (ii) of this paragraph, the nurse practitioner shall maintain documentation in written or electronic form that supports his or her collaborative relationships.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 64.5(g)(1)(i) and (2)(ii).
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@.nysed.gov
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on September 10, 2014, nonsubstantial revisions were made to the proposed regulation, as follows:
In subparagraph (i) of paragraph (1) of subdivision (g) of section 64.5, the term “specialty area involved” was replaced with the term “specialty involved” because the term “specialty involved” is the term used in the statute. This revision was made for the purpose of clarifying the text of the proposed regulation and to conform the proposed regulation to the statute.
In subparagraph (ii) of paragraph (2) of subdivision (g) of section 64.5, the term “specialty area involved” was replaced with the term “specialty involved” because the term “specialty involved” is the term used in the statute. This revision was made for the purpose of clarifying the text of the proposed regulation and to conform the proposed regulation to the statute.
The above nonsubstantial revisions do not require any changes to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on September 10, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above nonsubstantial revisions do not require any changes to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on September 10, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above nonsubstantial revisions require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule is necessary to conform the Rules of the Board of Regents and the Commissioner’s Regulations with Education Law section 6902 as amended by Part D of Chapter 56 of the Laws of 2014, which will become effective January 1, 2015. The proposed rule will allow certain experienced nurse practitioners to practice with more autonomy, pursuant to collaborative relationships with one or more physicians or a hospital. The proposed rule establishes several record keeping and documentation requirements for nurse practitioners practicing pursuant to collaborative relationships, as well as specific unprofessional conduct provisions for all nurse practitioners.
The proposed addition of paragraph (3) to subdivision (a) of section 29.14 of the Rules of the Board of Regents establishes that unprofessional conduct in the practice of nursing includes the failure by a nurse practitioner to comply with either the requirements relating to collaboration with a physician as set forth in Education Law § 6902(3)(a) or the collaborative relationships requirements of Education Law § 6902(3)(b).
The proposed addition of subdivision (g) to section 64.5 of the Regulations of the Commissioner of Education establishes criteria for authorizing qualified nurse practitioners to practice, pursuant to collaborative relationships with one or more licensed physicians or an Article 28 hospital, in lieu of complying with the requirements relating to collaboration with a physician, collaborative practice agreements and protocols. The proposed rule requires that nurse practitioners seeking to practice, pursuant to collaborative relationships, must have more than 3,600 hours of qualifying experience.
The proposed rule further requires nurse practitioners, under collaborative relationships, to complete and maintain a form, prescribed by the Department, to which they must attest, that describes their current collaborative relationships, which must be updated as needed and may be subject to review by the Department, upon its request. The proposed rule also requires nurse practitioners to acknowledge on the aforementioned form that if reasonable efforts to resolve any disputes that may arise with the collaborating physician, or, in the case of a collaboration with a hospital, with a physician qualified to collaborate in the specialty involved and having professional privileges at such hospital, about a patient’s care are not successful, the recommendation of the physician shall prevail.
In addition, to above-referenced form, the proposed rule requires nurse practitioners to maintain documentation in written or electronic form that supports their collaborative relationships.
The proposed rule will not impose any additional professional services requirements on entities in rural areas.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on September 10, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The revised proposed rule is necessary to implement the requirements of subdivision (3) of section 6902 of the Education Law, as amended by Part D of Chapter 56 of the Laws of 2014, by establishing criteria for authorizing nurse practitioners to practice, pursuant to collaborative relationships with one or more licensed physicians qualified to collaborate in the specialty involved or a hospital licensed under Article 28 of the Public Health Law, that provides services through licensed physicians qualified to collaborate in the specialty involved and having privileges at such institution, in lieu of practicing in collaboration with a physician in accordance with a written practice agreement and written practice protocols.
The revised proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:
An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the September 10, 2014 State Register, the Department received the following comments:
1. COMMENT:
A nursing organization expressed support for the proposed regulations and commended the Department’s diligent efforts to date. The commenter noted the history, education and training of nurse practitioners, as well as prior legislation that established scope of practice for nurse practitioners. The commenter further stated that over the years, it has become clear that a signed written practice agreement was an impediment to a nurse practitioner’s ability to practice.
The commenter stated that the proposed regulations clearly define “collaborative relationships” in a manner that is consistent with the new law and appropriately clarify which nurse practitioners are eligible to practice pursuant to a collaborative relationship in lieu of practicing in collaboration with a physician pursuant to a written practice agreement and written practice protocols. The commenter also stated that the proposed regulations provide additional detail about what documentation a nurse practitioner must maintain as evidence of compliance with the new collaborative relationship standard and restates that failure to comply with either this new standard or with the standard of practicing in collaboration with a physician pursuant to a written practice agreement and written practice protocols, constitutes professional misconduct.
The commenter stated that the proposed regulations aptly reference the statutory requirement that a nurse practitioner “complete and maintain a form, created by the department, that describes. . . current collaborative relationships,” and addresses issues pertaining to dispute resolution. The commenter further stated that it looks forward to continuing to work with the Department to develop the form.
DEPARTMENT RESPONSE:
The Department appreciates the support as it works to both protect the public and provide greater access to health care for New Yorkers.
2. COMMENT:
Another nursing organization expressed support for the proposed regulations because it supports the principle of amending the collaborative agreement regulations to ensure access to care for New Yorkers and the proposed regulations are consistent with statute.
The commenter also noted the history, education, and experience of nurse practitioners.
The commenter further stated that, although it would prefer an earlier working draft of the regulations because it believes that they provided greater clarity, it acknowledged that the revision to allow attestation of an agreement with a physician/physicians or health care agency by the “experienced” nurse practitioner is a more practical approach.
DEPARTMENT RESPONSE:
The Department appreciates the support as it works to both protect the public and provide greater access to health care for New Yorkers.
3. COMMENT:
One commenter, on behalf of several medical organizations, objected to language that would permit a nurse practitioner to have collaborative relationships with one or more physicians who are qualified to collaborate in the “specialty area involved”. The commenter noted that Education Law § 6902(3)(b) requires a nurse practitioner to have collaborative relationships with one or more physicians qualified to collaborate in the “specialty involved.” The commenter claimed that collaboration in the “specialty area involved” in the proposed regulations is much broader than collaboration in the “specialty involved” in statute. The commenter further stated that: (1) a nurse practitioner practicing family medicine or a community health nurse practitioner should not be permitted to collaborate with a gastroenterologist; (2) an acute care nurse practitioner should not be allowed to collaborate with an anesthesiologist; and (3) a psychiatric nurse practitioner should not be allowed to collaborate with a non-psychiatrist.
DEPARTMENT RESPONSE:
The Department disagrees with the commenter’s interpretation of Education Law § 6902(3)(b) and the proposed regulation as it would prohibit a nurse practitioner from collaborating with physicians who practice outside of the specialty area of practice of the nurse practitioner, which would undermine the nurse practitioner’s ability to provide well-coordinated quality health care. However, since publication of the proposed rule, non-substantial revisions were made as follows:
In sections 64.5(g)(1)(i) and 64.5(g)(2)(ii), the term “specialty area involved” was replaced with the term “specialty involved” because the term “specialty involved” is the term used in the statute.
These changes were made to clarify the proposed regulation and conform it to statute. These nonsubstantial changes will have no impact on the Department’s interpretation of statute or regulation.
4. COMMENT:
One commenter, on behalf of several medical organizations, indicated that the definition of “collaborative relationship” in Education Law § 6902(3)(b), needs extensive clarification in the proposed regulations. The commenter stated that greater specificity is needed as to what is meant by “exchanging information” and “to provide comprehensive patient care.”
DEPARTMENT RESPONSE:
Education Law § 6902(3)(b) defines “collaborative relationships” as when a nurse practitioner communicates with a physician qualified to collaborate in the specialty involved for the purpose of exchanging information to provide comprehensive patient care and to make referrals, as necessary. The proposed regulatory language is identical to the statute except that it states that physicians must be “qualified to collaborate in the specialty area involved”. The Department believes that the proposed definition as either originally drafted or revised to remove references to the word “area” is sufficiently clear and references to “exchanging information” and “comprehensive patient care” are not vague. However, since publication of the proposed rule, non-substantial revisions were made to replace “specialty area involved” with “specialty involved” because “specialty involved” is used in statute. These nonsubstantial changes were made for the purposes of clarifying the proposed regulation and conforming it to statute.
The Department disagrees with the commenter’s position that greater specificity is needed as to what is meant by “exchanging information” and “to provide comprehensive patient care”, as those terms are used in the statutory definition of “collaborative relationship.” Therefore, no changes are necessary. However, the commenter’s suggestions are noted and may be addressed in future guidance.
5. COMMENT:
One commenter, on behalf of several medical organizations, claimed that the proposed regulation would allow a nurse practitioner from any other state or a nurse practitioner employed by the U.S. Veterans Administration, U.S. Armed Forces or U.S. Public Health Service to practice in a collaborative relationship with a physician without a written practice agreement. The commenter stated that Education Law § 6902(3)(b) requires nurse practitioners to be certified under Education Law § 6910 and have practiced for more than 3,600 hours (as a nurse practitioner certified in New York State). The commenter recommended deleting references to other states, the U.S. Veterans Administration, U.S. Armed Forces and U.S. Public Health Service to make the proposed regulations consistent with the implementing statute.
DEPARTMENT RESPONSE:
Education Law § 6902(3)(b) will allow a New York State certified nurse practitioner who has been “practicing for more than three thousand six hundred hours” to practice and have collaborative relationships in lieu of practicing pursuant to a written practice agreement with a collaborating physician (if the nurse practitioner meets additional criteria in statute). To implement this statutory provision, the proposed regulations would allow a New York State certified nurse practitioner to meet the 3,600 hour experience requirement by practicing as a licensed or certified nurse practitioner pursuant to the laws of New York or another state or practicing as a nurse practitioner while employed by the U.S. Veterans Administration, U.S. Armed Forces or U.S. Public Health Service. The Department disagrees with the commenter’s interpretation of the law and the proposed regulations. The proposed regulations would not allow nurse practitioners to practice in New York State unless they are New York State certified nurse practitioners. The Department believes that it is a reasonable interpretation of the implementing statute to allow a New York State certified nurse practitioner to meet the 3,600 hour experience requirement by practicing as a licensed or certified nurse practitioner pursuant to the laws of New York or another state or practicing as a nurse practitioner while employed by the U.S. Veterans Administration, U.S. Armed Forces or U.S. Public Health Service. Furthermore, the proposed regulations are consistent with New York’s policy of not imposing barriers to professional practice in New York by members of the U.S. Armed Forces, their families or veterans.
6. COMMENT:
One commenter, on behalf of several medical organizations, noted that while Education Law § 6902(3)(b) requires nurse practitioners to “complete and maintain a form, created by the department … that describes [their] collaborative relationships,” the proposed regulation fails to illuminate as to what information should be included on the form. The commenter urged the addition of relevant details to help describe a collaborative relationship. The commenter also urged the addition of a provision that would require nurse practitioners to update the form relating to collaborative relationships “with each nurse practitioner re-registration”.
DEPARTMENT RESPONSE:
The Department prefers to have flexibility in the future to revise the form without having to amend regulations. The Department also believes that it is unnecessary to include content requirements for the form in regulation beyond what is explicitly required by statute. However, the commenter’s suggestions about what types of information should be included in the form are noted and will be considered as the Department develops the form.
The statute does not explicitly authorize the Department to require a nurse practitioner to update the form when registering with the Department. The Department believes the requirement that a nurse practitioner ensure the form is up-to-date, is reasonable. Therefore, no changes are necessary.
7. COMMENT:
One commenter, on behalf of several medical organizations, recommended that the proposed regulations denote the obligations of the nurse practitioner to his or her patients when a collaborative relationship with a physician is terminated.
DEPARTMENT RESPONSE:
The Education Law and Commissioner’s Regulations currently require a nurse practitioner to practice pursuant to a written practice agreement with a collaborating physician. In cases where a written practice agreement terminates, the nurse practitioner is legally required to enter into another written practice agreement with a collaborating physician to continue practicing. Current laws, regulations, and Department guidance do not explicitly impose any other specific obligations on a nurse practitioner with respect to their patients when a practice agreement terminates.
Similarly, newly enacted Education Law § 6902(3)(b) does not require the Commissioner to specify the obligations imposed on a nurse practitioner, such as informing his or her patients, when a collaborative relationship with a physician is terminated. This law defines “collaborative relationships” as when a nurse practitioner communicates with a physician for the purpose of exchanging information to provide comprehensive patient care and to make referrals, as necessary. Nurse practitioners are authorized to have collaborative relationships with multiple physicians and these relationships may start and end without any disruption in the nurse practitioner’s practice or any harm to patients. The Department believes that it would be impractical to impose specific obligations on nurse practitioners, such as contacting all of their patients each time a collaborative relationship with a physician terminates; moreover, it also would not have an impact on the quality of care that a nurse practitioner provides to patients. Nevertheless, the Department will take the comment under advisement and may consider issuing guidance should the need arise.
8. COMMENT:
“While the statute specifically states that the failure to comply with the requirements found in this paragraph [Education Law § 6902(3)(b)] by a nurse practitioner who is not complying with such provisions of paragraph (a) of Sec. 6902 shall be subject to professional misconduct provisions set forth in article one hundred thirty of this article, the proposed regulation fails to amend 8 NYCRR Part 29.14 to add a subsection (3) making it professional misconduct for a nurse practitioner who fails to adhere to the requirements of Section 6902[(3)](b) of the Education Law subject to professional misconduct.”
DEPARTMENT RESPONSE:
The Department disagrees with this reading of the proposed regulation. The proposed addition of paragraph (3) to subdivision (a) of § 29.14 of the Regents’ Rules establishes that unprofessional conduct in the practice of nursing includes the failure by a nurse practitioner to comply with either the requirements relating to collaboration with a physician in Education Law § 6902(3)(a) or the collaborative relationships requirements of Education Law § 6902(3)(b).
