The Risks of Clinicians Working Outside the Scope of Practice

Top 2023 Patient Safety Concerns: The Impact on Clinicians Expected to Work Outside Their Scope of Practice and Competencies | MLMIC Insider

By Tammie Smeltz

“The Impact on Clinicians Expected to Work Outside Their Scope of Practice and Competencies” is ECRI’s No. 4 concern for patient safety in 2023. Many healthcare providers are asked to step outside their scope of practice due to staff shortages, closing of rural facilities and public health emergencies. This blog will address both staffing issues and working outside a provider’s scope of practice.

The Healthcare Worker Shortage

There has been a shortage of healthcare workers including physicians, nurses and allied healthcare workers developing over time. McKinsey estimates that as early as 2025 the shortage of nurses will reach a dire level. There are many factors that have contributed to this shortage such as the COVID-19 pandemic, the “Great Resignation” and our aging population. As our population ages, their need for medical care increases. Unfortunately, as healthcare workers retire and leave the workforce, they are not sufficiently being replaced by new healthcare workers. This creates a serious supply and demand problem for the healthcare industry.

Many healthcare professionals are leaving the workplace because they are required to work long hours under strained conditions. This takes an emotional toll on all healthcare providers and can result in burnout. Physicians are leaving the practice of medicine due to the excessive number of administrative duties required to operate their practice, leaving them little time to focus on patient care.

Strategies to Address the Healthcare Worker Shortage

The following are some recommendations to address healthcare shortages while keeping your workforce balanced and productive.

Consider integrating additional Advanced Practice Providers. Integrating Advanced Practice Providers into your practice may help support physicians in your practice and address healthcare provider shortages. The role of licensed nurse practitioners and physician assistants has expanded greatly over the last few years and is expected to grow even more in the future. As of November 2022, there were more than 355,000 nurse practitioners licensed in the United States.

Embrace new technology. The use of telemedicine skyrocketed during the COVD-19 pandemic. While not a substitution for all types of in-person care, incorporating telemedicine into your office practice may allow the provider, as well as the patient, more flexibility in their schedule. Remote patient monitoring, use of a medical scribe and embracing artificial intelligence may also assist in decreasing provider workload and thereby cultivating a better work-life balance.

Connect with your nursing staff. In a 2021 McKinsey report, 22% of nurses surveyed indicated they may leave their current nursing position within the next year. Factors influencing their decision to leave included insufficient staffing levels, demanding nature/intensity of workload, and the emotional toll of the job. Additionally, the nurses surveyed did not feel listened to or supported at work. Providing support to your nursing staff in the way of mental health resources or offering childcare solutions may be effective in retention. Offering a flexible schedule is another way to not only retain nursing staff but entice new talent. Many nurses have expressed an interest in working remotely especially those in the field of home health care. The McKinsey report also found that recognition, communication and scheduled breaks to recharge are benefits nurses are looking for when seeking employment.

Keep an eye on the future. Team satisfaction and employee engagement are crucial when it comes to retaining healthcare workers. Consider developing committees to engage with your staff in areas such as workforce issues, wellbeing and diversity, equity and inclusion. Lastly, consider developing and updating succession-planning strategies for your healthcare team.

For more information on resource challenges, including staffing shortages, join MLMIC on October 30, 2023, at the AHRMNY 2023 Fall Educational Conference and Reception in Saratoga Springs. For additional details regarding this event click here.

General Information on Scope of Practice for Nurses and Advanced Practice Providers

When facing staffing shortages practices may be inclined to expand the services of existing staff. Expanding services beyond a person’s scope of practice has both liability and licensure implications that are difficult to defend.

While there are many demands and strains in the healthcare system, it is imperative that nurses work within their scope of practice. Nurses performing duties outside their scope of practice may be reported to the Office of the Professions (OP) which could result in an investigation leading to fines and possibly suspension or revocation of their license. Furthermore, the Office of Professional Misconduct (OPMC) could also investigate the nurse’s supervising physician for possible misconduct.

The following is some general information to keep in mind regarding scope of practice in the field of nursing, as well as Advanced Practice Providers:

Licensed Practical Nurse

Section 6902 of Article 139 of the Education Law distinguishes the legal definitions of Licensed Practical Nurses (LPNs) and Registered Nurses (RNs).

The practice of nursing as a Licensed Professional Nurse is defined as performing tasks and responsibilities within the framework of casefinding, health teaching, health counseling and provision of supportive and restorative care under the direction of a registered professional nurse or licensed physician, dentist or other licensed healthcare provider legally authorized under this title and in accordance with the commission’s regulations.

Section 6902 does not include nursing diagnosis within the scope of practice of LPNs. An LPN does not have assessment privileges, and they may not interpret patient clinical data or act independently on such data. An LPN may not triage, create, initiate or alter nursing care goals or establish nursing care plans. Licensed Practice Nurses function by law in a dependent role at the direction of a Registered Nurse or other select authorized healthcare provider. Under the above direction, an LPN may administer medications, provide nursing treatments and gather patient measurements, signs and symptoms that can be used by the RN in making decisions about the nursing care of specific patients. An LPN may not function independently.

Registered Nurse

The practice of the profession of nursing as a Registered Professional Nurse, according to State Education Law, Article 139, is defined as diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling and provision of care supportive to or restorative of life and well-being, and executing medical regimes prescribed by a licensed physician, dentist or other licensed healthcare provider legally authorized under this title and in accordance with the commissioner’s regulations.

A nursing regimen shall be consistent with and shall not vary any existing medical regimen. A registered nurse is not allowed to provide nursing services that they are not competent to perform even if the service is allowed by New York law. An RN may be charged with professional misconduct if they are not competent in a service they are providing or if they are working out of their scope of practice.

Under Section 6902, RNs may function independently in providing nursing care in areas such as:

Casefinding, including but not limited to identification of epidemiological trends, client abuse assessment and early identification of emergent complications.
Health teaching including but not limited to signs and symptoms of medication side effects; disease process and management in relation to life factors such as culture and ethnicity; and health care promotion.
Health counseling, including but not limited to mental health, addiction and counseling related to management of chronic disease.
Care restorative of life and well-being, including but not limited to rehabilitation services such as wound care; triage and continuous assessment for early identification of signs and symptoms of post-operative complications with timely intervention and ongoing surveillance and nursing intervention to rescue chronically ill persons from the development of negative effects and secondary results of treatment.
Care supportive of life and well-being, including but not limited to hospice and palliative care, chronic pain management through non-pharmacological nursing measures such as relaxation and imagery techniques; and public health care including elder care, well-baby care, school and industrial nursing.

Nursing diagnosis by an RN, as cited in section 6901 of Article 139 of the Education Law is: the identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen. Such diagnostic privilege is distant from a medical diagnosis.

Lastly, it should be noted that the scopes of practice of the RN and LPN are not interchangeable. Inappropriate use of LPNs may expose agencies to potential litigation. There is a possibility the LPN may be charged by the OPD for acting outside the scope of practice and the RN and any supervising provider for unprofessional conduct for inappropriate delegation of professional responsibilities.

Nurse Practitioner

A Nurse Practitioner (“NP”) not only performs the normal duties of an RN, but they may also diagnose an illness or condition; perform therapeutic and corrective measures; and prescribe medication. A NP does not need to work under the supervision of a physician but may need to perform services in collaboration with a licensed physician. A written collaborative agreement may be needed depending on the experience of the NP. Currently, the New York State Education Law requires all NPs to practice in accordance with written practice protocols and a written practice agreement with a collaborating physician until the NP has completed 3,600 hours of experience practicing as an NP pursuant to the laws of New York or another state or practicing as an NP while employed by the United States veteran’s administration, the United States armed forces or the United States public health service. Once a NP completes 3,600 hours they may practice independently.

Physician Assistants

Under New York law, a Physician Assistant (PA) is permitted to perform medical services when under the supervision of a physician and only when the acts and duties assigned to him/her are within the scope of practice of the supervising physicians. Although this supervision must be continuous, the physical presence of the supervising physician is not always required. It should be noted that the Department of Health regulations specifically provide that a physician who supervises or employs a PA will be legally responsible for the medical services performed by the PA. That being said, a physician’s liability for the actions of a PA will depend upon the nature of their relationship.

More Information

MLMIC has published several resources supportive of this topic as follows:

MLMIC policyholders can reach our 24/7 emergency support services for questions regarding scope of practice by calling (844) MMS-LAW1. You can also submit a specific question by sending an email request here.

Tammie Smeltz is the Content Marketing Manager at MLMIC Insurance Company.

Photo by Vladimir Fedotov on Unsplash