Supervision

Although the new legislation expands the authorized scope of practice of mid-level practitioners, the legislation does not change the standards of practice requirements for physicians.  Physicians in Oklahoma must continue to rigorously follow their various standards of practice. 

Physicians are held to strict standards of practice in the following categories.  First, Osteopathic doctors must follow their adopted professional standards of practice as outlined in their codes of ethics.  Second, physicians must strictly adhere to all legal standards imposed by federal, state, and local laws and regulations.  Third, licensed physicians must obtain and maintain specified educational requirements as part of their competency standards.  Fourth, physicians are held to a professional and legal competency standard of care reasonably expected of qualified professionals under similar circumstances as defined by members of their profession. And finally, doctors are held to supervisory standards of management and delegation of authority that place ultimate responsibility of patient care on the physician.

In contrast to these exacting standards of physician practice, by definition, mid-level practitioners are held to less comprehensive, and in many cases, lower standards of practice when performing their duties.  The term “mid-level” refers to the American system of medical care where physicians are held to the highest and most comprehensive sets of standards.  Mid-levels, as the term suggests, have a less comprehensive responsibility for patient care with standards of care reflecting this lesser obligation for patient care.  Finally, other medical care providers are held accountable for an even less comprehensive set of obligations and the standards applied to their medical duties are even more limited. 

Although many mid-level practitioners personally adopt and adhere to standards of practice equal to, or near, those of a physician, they are not legally required to meet those more exacting standards.  In contrast, physicians who compromise any of the rigorous practice standards required of them are subjected to legal malpractice and professional regulatory penalty if they deviate to a single standard.

The three Bills passed by the legislature do not mandate new standards of care on mid-level practitioners.  Each bill specifically avoids adopting new standards for mid-level practitioners who may now practice independently of physician supervision in the provision of certain specified medical services.  The provision of these specified medical services will be subject to lower legal and regulatory liability regarding patient care and outcomes.

In this new scope of practice environment, patients in identical circumstances may be treated by either a physician or a mid-level provider who are each held to different duties, standards, and liability for patient outcomes. 

Therefore, where treatment of a patient is a result of any collaborative effort of a physician and mid-level provider, the legal and regulatory reviews may be forced to assign ultimate responsibility for all of the patient care to the physician who is held to the most comprehensive sets of medical and legal standards.

It is imperative that physicians are aware and consider in this new scope of practice environment, a physician who collaboratively forms a business relationship, delegates patient care, or supervises certain mid-level medical care or treatment is likely to be personally and professionally assuming a higher risk of ultimate liability for care that was rendered independently by a mid-level provider.  

As with all physician decisions, the amount of practice risk assumed by the physician in any situation is ultimately up to the physician.  The Oklahoma Board of Osteopathic Examiners cannot give legal advice or dictate practice decisions. 

However, the Board of Osteopathic Examiners strongly recommends physicians seek legal advice from their personally selected legal advisors when making practice decisions.  Personal advice from your legal advisor is not binding on legal or regulatory decision makers, but legal advice can provide thoughtful guardrails for your practice and written advice from your attorney can provide evidence of a good faith attempt to meet standard practice obligations.

The Oklahoma Board of Osteopathic Advisors provides the following considerations for discussion with legal and personal advisors when dealing with mid-level practitioner independent practice situations.

1.     Consider adopting a non-referral, non-delegation policy for mid-level practitioners who are practicing independently.  You should evaluate whether a referral to an independent mid-level practitioner might constitute a violation of 59 O.S. § 637 A 2 d which reads:

d. delegating professional responsibilities to a person who is not qualified by training, skill, competency, age, experience or licensure to perform them, noting that delegation may only occur within an appropriate doctor-patient  relationship, wherein a proper patient record is maintained including, but not  limited to, at the minimum, a current history and physical.

2.    In situations where you have a supervisory relationship with a mid-level practitioner, consider a supplemental supervisory agreement outlining that the supervisory relationship is immediately terminated if the mid-level practitioner elects to exercise their right to full or part-time employment as an independent mid-level practitioner during the supervisory relationship. 

As an Osteopathic physician you are required to have a written supervisory agreement, on a form approved by the mid-level’s licensing board, outlining the full scope of your supervisory duties and the scope of practice of the mid-level.  This form is required to be filed with the Oklahoma Board of Osteopathic Examiners along with the names of all supervised mid-level practitioners.

A physician should also consider having their legal advisor create a supplemental form that clearly outlines the supervisory relationship is immediately terminated if the mid-level practitioner elects to exercise their right to full or part-time employment as an independent mid-level practitioner while under the supervision of the physician.

3.    In hybrid situations where you have a supervisory relationship with a mid-level practitioner, and the mid-level also wants to practice as a full or part-time independent mid-level practitioner, you should consider having your legal advisor draft an individualized comprehensive practice agreement outlining the limits of your supervisory authority.

It is this hybrid situation where an Osteopathic physician is most at risk for legal and regulatory liability.  A simple written supervisory agreement, on a form approved by the mid-level’s licensing board, outlining the full scope of the supervisory duties and the scope of practice of the mid-level is likely insufficient to provide any risk protection from liability.  It is suggested the individualized agreement fully outline the standards, times, locations and circumstances under which the mid-level will independently practice.  It should include as much detail as possible regarding procedures, record keeping, and required duties of both the physician and mid-level practitioner.

4.    A physician should understand the ramifications of entering into any collaborative agreement with an independent mid-level practitioner in their practice setting. Any collaborative relationship, whether in practice or simply investment, can be construed as establishing the necessary element of control to trigger physician liability.  A physician should have legal counsel review all practice and/or business documents for sufficiency as well as financial and professional risk assessment. 

In addition, physicians should discuss with legal counsel the ramifications of informal collaborations, consultations, advice, discussions, and other actions that create contractual relationships without a physical contract and could avail the physician to unintended liability.