Attorneys
M.D Update, October 2011. For a PDF version of the article click here.
McBrayer Newsletter, October 2011, Volume 1, Issue 7. To view the October 2011 newsletter click here.
Authored by: Lisa English Hinkle
As more nurses, pharmacists, physical therapists, chiropractors and other allied health professionals obtain advanced degrees that confer the ability to use the title "doctor," physicians should be concerned that losing control over the term "doctor," a word that has identified physicians for centuries, will create confusion for consumers and lead to a loss of control over the practice of medicine. With a shortage of physicians nationally as well as in Kentucky, mid-level practitioners are becoming the gatekeepers for health care. Mid-level practitioners now make important medical decisions about diagnosis and access to care. In Kentucky, the Kentucky Board of Medical Licensure ("KBML") has taken an active role regulating the practice of certain allied health professions. Professions who have their own licensing authority, however, have the ability to broaden the scope of practice of their profession and determine what title may be used. The tensions between the professions may culminate in who gets to use the term "doctor."
The KBML has little control over Advanced Registered Nurse Practitioners ("ARNP"). ARNPs are regulated by the Kentucky Board of Nursing, which has the statutory authority to regulate the nursing profession. An ARNP's scope of practice is essentially defined by the specialty board certification earned by the nurse. Every ARNP is required to have a collaboration agreement with a physician for prescribing medication, but not to practice as an ARNP. The KBML has asserted control over ARNPs by issuing specific requirements for the physicians who serve as the collaborators. Detailed requirements for these agreements vary based upon whether the agreement covers controlled substances or non-scheduled legend drugs. Additionally, the KBML will only allow physicians to enter into two collaborative agreements and has issued a very detailed Board Opinion establishing the standards of prevailing practice for physicians collaborating with an ARNP. Other than the requirement for a collaborative agreement, an ARNP, however, may function independent of a physician and is entitled to bill patients for services. Twenty-three states allow nurse practitioners to practice without physician supervision or collaboration. While ARNPs are required to obtain a masters degree and pass a certification examination given by a specialty board that is recognized by the Kentucky Board of Nursing, ARNPs are not entitled to use the term "doctor." When an ARNP earns a doctorate, the ARNP will have a doctorate in nursing along with the authority to use the title "doctor of nursing." As a recent New York Times article reports, last year 153 nursing schools awarded doctor of nursing practice degrees to 7037 nurses and is projected to grow along with more nurses using the title doctor. [1]
Physician Assistants ("PA"), on the other hand, are regulated by the KBML, which has issued very specific supervision requirements that are more detailed than the collaborative agreements for ARNPs. In 2010, the Kentucky Legislature enacted a statute authorizing licensure of PAs for the first time. PAs, however, are regulated by the KBML, not by a profession specific board. The PA's licensure statute [2] limits not just a PA's scope of practice, but also a PA's ability to bill for his or her services independently of a physician. The statute specifically prohibits a PA from prescribing medications for a patient, requires a physician signature for medical records, and requires the active and continuous supervision of a physician. In fact, a PA may not practice in a location separate from a physician until the PA has 18 months of experience and then the PA must apply for permission from the KBML to practice in a location separate from a supervising physician. In addition, a physician supervising a PA must complete a very detailed application that sets forth the scope of practice of the PA and the type of supervision that will be provided. By comparison, nurse practitioners have much more autonomy than PAs in Kentucky.
Like nurse practitioners, physical therapists have their own licensing statute, are regulated by their own board, and function autonomously of the KBML. The physical therapy statute also makes clear that a physician's order is not necessary to provide physical therapy to a patient. While there has been some dispute concerning whether a physician may perform physical therapy for patients, Kentucky's Supreme Court resolved this dispute and ruled that physicians could perform physical therapy. [3] Currently, physical therapists are required to complete bachelor's degrees and pass the profession's national examination. By 2015, the profession will require physical therapists to have doctorates to take the certification exam. Like nurses, physical therapists who earn a doctorate degree will be entitled to report their credentials as a doctorate in physical therapy with the ability to use the title "doctor."
When it has been appointed by the legislature to serve as the regulatory board for professions like acupuncture, athletic trainers, and surgical assistants, the KBML has issued regulations that create very specific requirements for these professionals and define their scope of practice to require physician involvement. For example, acupuncturists are required to develop written plans for consultation to maintain relationships with two physicians, and to inquire of potential patients whether they have certain dangerous conditions. If a patient reports one of the specified conditions, then the acupuncturist is required to consult with the patient's treating physician before acupuncture is performed. [4]
As patients increasingly seek health care from mid-level practitioners, use of the title "doctor" promises to become more common as ARNPs and physical therapists will be entitled to use "doctor" just like chiropractors and pharmacists. In a certain respect use of the educational credential and title "doctor" is nothing new. But, as the gatekeeper to medical services becomes not just physicians but also ARNPs, physical therapists and possibly PAs, the issues presented by scope of practice between these professions will become increasingly complicated and sure to result in confusion for the consumer about who really is the doctor.
Lisa English Hinkle is a Member of McBrayer law. Ms. Hinkle concentrates her practice area in healthcare law and is located in the firm's Lexington office. She can be reached at lhinkle@mcbrayerfirm.com or at 859-231-8780, ext. 1256.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
[1] Harris, Gardner, "When the Nurse Wants to Be Called 'Doctor' "New York Times, October 1, 2011.
[2] KRS 311.844
[3] Dubin Orthopaedic Center PSC v. Commonwealth of Kentucky, State Board of Physical Therapy. 294 S.W.3d 421 (Ky. 2009).
[4] KRS 311.673, 311.680, and 201 KAR 9:460
