Mid-level providers, such as physician assistants and nurse practitioners, are gaining popularity – and authority – in the emergency department. To explore the issue of using mid-level providers to extend the reach of emergency physicians, we brought together four experts to take part in a dialogue, moderated by EPM executive editor Mark Plaster. Read the full transcript of the roundtable here.

Mark Plaster:  Greg Henry, we’ll start with you. Mid-level providers (MLPs) sound like the best thing since sliced bread, and given that MLPs acquire some level of primary care, some would argue that they cost a lot less than emergency physicians. Doesn’t it make total economic sense then to transfer as much primary care as possible into their hands? How should an MLP be billed? Should it be less because their training is less or should it be the same because of the complexity of the case?

Greg Henry: Let me start out by saying that I’ve sat on the board as an advisor to the Society of Emergency Medicine Physician Assistants (SEMPA) and have participated in, I think, all but one of their conferences. I am a supporter of mid-level involvement, but I think we need to start becoming honest about what is happening in the world. There is very good data that suggests between 20 and 25 percent (some would say 30 percent) of cases are being seen by mid-level providers and the amount of supervision that is involved in the provision of that care varies tremendously across the board, as does the charging for those services. I think we need to be truthful about what we want accomplished and what we think needs to be done in a country that is so broke it’s only slightly better off finically than Greece, Ireland and Spain. We have to contract the health care system. So the question is not whether MLPs are better than, or as good as, physicians, but whether  they are adequate for certain disease entities and, in all fairness, can we afford more at this moment in time?

Concerning appropriate charges. If we turn over a certain amount of care to individuals who are not physicians, is it dishonest, immoral, or illegal to suggest to the public at large that they are still being seen by a physician by virtue of supervision? I think this is a dangerous trip for us to go down. If you are going to bill at the 100 percent fee under the various federal programs and not the 85 percent (which would be no direct physician involvement) be very careful what you consider to be supervision by the physician. I think mid-levels can certainly perform a lot of functions. However, the traditional view of a PA is that of physician’s assistant. This is an intellectual change if we are now moving to have independent practitioners who provide a level of care which is not overseen on an online basis by physicians. When you ask how should mid-level providers be billed, my first response is: “honestly.” Everyone should know what they are being billed for. The question of whether there should be a discount because it is a mid-level provider begs the question, if they need no supervision, why in the world would the government pay a doctor that rate when they can pay half that rate and receive the adequate service that that patient needs.

We need to understand if we are not going to give the service, we are not going to be able to bill for it. I will not release names, but I have been in Washington recently and if you don’t believe that they’re talking about this at CMS, you are smoking dope. The other thing is emergency medicine has no friends in the other specialties and people like internal medicine (which is in many ways dying) and pediatrics (which maybe never even existed at a high level), are all saying the same thing: Just run your emergency departments with PAs and let them call specialists when they need them. I believe we are in a much more difficult situation right now than we have ever been, and we will need some real direction about what services are given by various people.

John Graykoski: A couple points here. One, CMS requires that PA services be billed at 85 percent of physician costs. And at least in the critical access hospitals any patient that enters the emergency room is presented with a document that they have to sign indicating that a physician will be present – perhaps at some distance – but a PA will see them.  Patients have to consent to this in order to be seen. So, there are some safe guards that CMS has put into place, but Greg’s issues are certainly important. I think it is much bigger than the role of the PA. To that extent there has to be an ongoing dialogue that consists of all the parties concerned. Because there is a significant shortage of both emergency physicians and PAs, and it does not look like it will resolve itself any time soon. We have to ensure that people are served and that we have qualified people to do so.

Mark Plaster:  Are we paying for the training of the individual, or are we paying for the service rendered? If the service rendered is exactly the same, why should the payment be 80 percent of what it was?

Greg Henry: Well, obviously the 80 percent is recognizing that the physician was not directly involved in seeing the patient. It also says that we are paying because there is a back up physician if necessary to become involved in this practice. By the way, I’m going to argue with the concept that we are so graphically short-staffed in emergency medicine; I don’t think that’s true. I think we have not recognized how to better utilize physicians. No other business would function like we do. There should not be an emergency doctor in a busy department without a scribe. I claim you can get two more patients per hour out of every physician if they had a scribe and someone doing their order entry. Physicians should be a floating cloud of intellectual knowledge which brings that knowledge to bear on patient problems. A physician assistant should have the ability to extend that and provide data to the physician. But we are failing to do that at this time and I think it is leading us down a dangerous path.

Mark Plaster: But you did not answer my question. If the diagnosis of a sore throat is worth $50, $75 or $100, isn’t it worth that regardless of whether a PA or a physician sees the patient?

John Graykoski: I believe the 80 percent is a magical number. When the PA profession began it was believed that they were trained to see 80 percent of what a primary care physician can see and manage. CMS later picked up that imaginary 80 percent and decided it was logical to reimburse 80 percent. Whether that has a basis in reality I doubt seriously. Also, if anyone is actually billing PA services at 100 percent of physician rates, the requirement is that the physician has to see and independently conduct a history and physical exam of that patient in order to justify the 100 percent billing. I know people attempt to get out the 100 percent through the incidental “two clause” but it won’t fly unless there is good documentation that the physician did due diligence with the patient.

Greg Henry: John, what I am trying to tell you, if you go around the country and see the billing games that are being played – and it is happening every single day. I hope these doctors look good in stripes because defrauding the federal government is a crime and people will pursue this at some point in time. All they have to do is ask a patient if they were seen by the doctor. If not, and there’s a 100 percent bill, there will be trouble.

Mark Plaster:  John Graykoski, mid-level providers have been accused of being usurpers, of trying to take over the positions of physicians. They are providing unsupervised care in many physician shortage areas. I have witnessed a PA running an ER on his own. Should the goal of mid-level providers be to provide completely independent care?

John Graykoski: I’ll answer this based on the perspective of SEMPA. The physician assistant profession was formed as dependent practitioners under the physician license. That’s how we were conceived and that’s how we continue to function. We believe strongly that the relationship between the physician and the PA is essential. I supervise a group of three critical access hospitals; their emergency rooms are primarily staffed by PAs. In our situation, there is a significant amount of oversight and peer review. The physicians set the standards for what required training and whether or not someone has enough experience to work in the ER.

There are several issues but I will emphasize that we believe emergency physicians must be in charge of the emergency medical care in the United States. We work closely with them and are delegated based on our experience, training and the physician’s comfort level in the services we provide. Having said that, we are aware that are other issues involving related professions who have different views. But we stand united with our physician colleagues in saying that that is not acceptable, and that the physician needs to be in control of the emergency room.

Greg Henry: I spoke last week at the largest PA program here in the state of Michigan. I was confronted by someone who was getting a PhD in health education, and they were expecting to be called “doctor” in the emergency department. At some point time, that is like calling my dentist “doctor” in the emergency department or calling someone who has PhD in microbiology “doctor” in the emergency department. I think there is potential here for misunderstanding in the medical community.

Kevin Klauer: This is some precedent on this in different states. This has been focused more on advance practice nurses in the emergency department. If an advance practice nurse is working in the emergency department as an RN but they have a PHD, there are several states that have on statute that you are prohibited from using the term “doctor” to represent yourself to the patient when you’re functioning as a nurse. I believe that in those same states that it is interpreted that if you are a physician assistant, you can’t use the PhD to call yourself doctor in the patient care environment.

John Graykoski: I hope, Greg, that you encountered an outlier. The American Academy of Physician Assistants does have as its policy that the masters level is the terminal degree. We do have some PhD programs that are more related to management issues. It does become complicated because the military does have clinical doctoral degrees for PAs. That has changed the mix a little bit, but we are very clear that we are not physicians. In states where I have worked, there have been strict regulations limiting how we identify ourselves to our patients. We have to be specific that we are not physicians, we are physician assistants.

Paul Casi: From a legal standpoint, both issues of identification and billing are important. If you had a situation where the mid-level provider had their care questioned, the patient can say there was no disclosure stating this is a mid-level provider, and you don’t have – as John mentioned – a form that states you are going to see a mid-level provider with a physician available. Even worse, if they represent themselves as a physician because of the PHD, that’s going to present a lot of problems in front of the jury. Similarly, from a billing standpoint, if in fact the billing goes out at the 100 percent rate and there was little to no supervision provided by the emergency physician, and you have a substandard quality care issue, the supervising physician and the PA will have a serious problem.

Mark Plaster:  This next question is for Paul Casi. One of the issues when we start talking about mid-level providers is whether the quality of care is the same. There are two issues here. Is there an increased medical-legal risk when a patient is seen by a mid-level provider? I’d also like you to address the idea of emergency physicians who are, after the fact, reviewing charts, whether that constitutes “supervision,” or whether it’s just an opportunity for us to increase our level of legal risk. Is it in fact a legal trap ready to spring on us? And finally, what is the level of supervision that a court – and the public – expects in the interaction between a physician and a mid-level provider?

Paul Casi: With respect to an increased risk when a mid-level provider provides care, I’m not aware of any data, and I certainly have seen any studies, showing what the difference is in terms of outcome. But the positions that all of the specialty organizations seem to take is that a mid-level provider does not take the place, nor is it a substitute for the experience and training of a board-certified emergency physician. And certainly in the legal setting, council will point out that each of the specialty organizations, from ACEP to AAEM to SEMPA, all make this clear. The other question, in addition to the increased risk to the patient, is that there’s clearly an increased liability risk, for the physician and the hospital, by having mid-level providers provide care if in fact there are not appropriate safeguards being put in place. Those would be, from the physician standpoint, what level of supervision is in fact being provided. From the institution or hospital standpoint, it would be based on several things – what do the hospital bylaws, rules and policies of the emergency department state with respect to how much supervision is required, and under what circumstances must the physician directly see the patient. There are also usually requirements both by state statutes or by the particular hospital bylaws which would require that there be some sort of collaborative practice agreement, delegation agreement or supervision agreement. In every case, that’s going to be used to determine [in court] the level of supervision which should have been provided. Also, a lot of the specialty organizations are publishing or indicating that if you are going to use a mid-level provider in the facility, these people need to be properly oriented, trained and assessed for competency. In most legal cases, if there are specialty guidelines, practice management bulletins and so forth, those will be use to, in essence, attempt to establish what reasonable practice is. Most specialty practices have disclaimers that this does not set forth an exclusive course of conduct or does not set the standard of care and so forth. Nevertheless, in reality, they’ll end up getting used as a good set of rules by which reasonable care can be delivered, and rules and guidelines that should be followed unless there’s a good reason not to. ACEP actually has a 2007 guideline regarding the role of physician assistants and nurse practitioners in the emergency department. They recommend that the scope of practice both for PAs and NPs be clearly delineated, and be consistent with state rules. They actually go so far as to say that there should be a list of symptom complexes that can be evaluated initially and addressed by a PA, and also a list of procedures that can be performed, and then the level of consultation for those procedures. They also talk about the fact that certainly depending on the patient’s presentation, this whole issue of supervision may be a case-by-case type of thing. So you have, sort of as an overlay, state rules, hospital bylaws, and supervising agreement that the physician has signed with this PA provider, in terms of their responsibilities and duties. Then you have the clinical practice guidelines and protocols, and then ultimately, you must look at the actual presentation of the patient at the time, and the experience level of the PA, so that the physician is making an independent decision based on this particular patient in terms of how much supervision does or doesn’t need to be provided.

One of the questions you asked was what danger is there in respect to paper sign-off. Clearly if the physician is doing a chart review, and they have signed off on the care, from a legal perspective they are going to be held responsible for supervising, or at least approving the care that was provided. So for example, if a patient is discharged when arguably they should not have been without admission or further testing, and that’s been signed off on, that will be considered to be an act of supervision or oversight. Then the question is whether that’s appropriate or not. Along that line there are also a lot of physician statements from ACEP and AAEM that indicate that that degree of supervision is probably not appropriate. There is a clinical practice management statement from ACEP from October of 2007 that flat out says that ACEP’s position is that mid-level providors such as PAs and NPs should not provide unsupervised emergency department care. And there is a position statement from AAEM which suggests or infers that the attending doctor be physically present, accessible, and given adequate time to be directly involved in supervision. So I think it definitely is a trap. After the fact “supervision” certainly does not give the physician the opportunity to see the patient and make an independent judgement or assessment of whether the care being provided is appropriate or not.

So one of the questions is: what is the minimum level of supervision which is required from a legal standpoint. I think that once you are supervising in any degree or fashion, you’re putting yourself at risk and you face the question, Is the degree of supervision adequate under these circumstances.

Greg Henry: Number one, having reviewed now 2,150 cases in emergency medicine, I am watching a logrhythmic increase in cases involving physicians assistants. Why? Because the number of patients being seen by PAs has quadrupled in the last ten years. I think that’s just an obvious statement. Here’s the worst thing I’m seeing from a defense standpoint: Doctors saying, “well, not my problem! I didn’t see the patient.” And yet their signature appears on the chart. What they don’t realize is that by virtue of supervision, they have acquiesced with the care that was given at that moment in time. Now we can’t have this both ways. You either supervise and get paid or you don’t. This is a real problem. Nothing is as bad as a PA and doctor pointing at each other in court. You might as well just add a zero and shut the case.

I understand that all of the societies have guidelines as to what should be done, but I’m telling you, it’s not happening in most cases. Mostly what’s happening is that signatures go at the bottom of charts which have not been thoroughly evaluated. I would challenge anyone to show me where this is not the case. I know it’s happening in residency programs with residents, and I promise you it’s happening with PAs. Also, when we deal with physicians, we know their training. They’ve been to residencies. They’ve got a board. We know who they are. Right now, nothing would prevent somebody one day out of the PA program from seeing patients in a lot of these emergency departments. We have no way of ascertaining what their background, experience or training is. There’s no certificate program to say that they know anything about emergency medicine and I think until we have some criteria here for people to be allowed to work in emergency departments, it’s going to continue to be a very muddy area. Lawyers like to refer to this as constructive ambiguity. Whenever there can be two opinions, there can be a lawsuit.

Kevin Klauer: In the groups that I’ve spoken with around the country, there is still an overwhelming sentiment that it is perfectly appropriate – even couched in the terms of quality assurance – to sign off on charts at the end of a shift, saying that you agree with the management that has been provided. I fully agree with the others who have mentioned that when you decide to supervise in any form or fashion, you are actively supervising at that point. Further to that end, many of those same physicians feel that that is a level of supervision that warrants billing at the physician level, which definitely is not accurate and not appropriate. Although it’s not intentional, the federal government and the OIG doesn’t care and sees this fraud and abuse. I think we have to educate people out there as to the level of supervision that is required for different billing levels, and also, what is required from a quality standpoint, a legal standpoint, not to mention just good medicine. Physician assistants are fantastic, but they often are not comfortable, or do not have the scope of practice, to see certain types of cases autonomously. I’ve spoken with many PAs who feel that way, and it’s the docs who are not providing enough supervision and sending them in to see cases that they don’t feel adequately prepared to care for.

John Graykoski: I think the bottom line is that the buck stops with the MD. Clearly SEMPA’s position has always been that it is the relationship between the physician and the physician assistant that works or doesn’t work. It’s in the delegation of those responsibilities by the physician to the PA that a lot of this control comes in. Having said that, I also hear anecdotally across the country that it’s hospital administrators who set the rules, and yes, sometimes it is just too easy for physicians to simply sign charts at the end of the day because that’s what they were hired to do. But that’s not going to guarantee quality. Our commitment is to work together to make sure we do have quality standards and define these relationships. It’s been our stand that it really is that relationship with the physician where these definitions take place. You are going to find people coming in with less experience, or more, and that delegation will change based on the experience level of the PA and the comfort level of the physician who is supervising them. I think that is part of where our challenge is for the future. At my hospital, we won’t interview anyone unless they’ve had two years of supervised experience in a large emergency room with residency-trained board-certified emergency physicians. After two years in the main emergency room, we will consider them for working in a rural emergency department where their supervision is at a distance, be it through telephone, telemedicine, etc... We set significant standards for them. All of our cases are reviewed by a medical director. Any transfer is reviewed, any code is reviewed. We use standards for the management of sepsis and we have national standards for the management of M.I. We require all of our PAs working solo to have regular training in procedural sedation and rapid sequence intubation. We send them off to the Baltimore airway course so that they have cadaver experience; they have to maintain six intubations minimum per year. There’s skills training where they renew the lesser-used, higher-risk procedures, including chest tubes and central lines. This isn’t cheap, by the way. If you’re going to do it right, you’ve got to invest in the ongoing training and supervision and make sure there is time for it. If PAs are only seen as an extension of the moneymaking ability of the facility, we’ve missed the boat and the focus is entirely wrong.

Greg Henry: John, let me point out that this is what your organization does, but that’s a business decision of a particular organization. It’s not a national standard. I’m telling you right now that there are people who are going to get out of PA school this year and will be heading off to work in places where those standards aren’t enforced. I think that the major EM societies have been a little bit slow at laying out specifics on this question, and the reason is that there are just so many people violating it – they don’t want to make these people mad!

Mark Plaster:  Paul, Kevin brought up something we may need to explore further, and that is the idea of fraud. Is it possible that with our current use of mid-level, and the way that they are projected to the public, that we are subjecting ourselves to an accusation of fraud?

Paul Casi: That’s a good question. If you have a situation where the person is not clearly identified to the patient in one form or another (the best way being both documented and verbal explanation) and if you bill it as full physician supervision when in fact just the chart is signed, I think in addition to some sort of billing fraud, you could have just a common law fraud that there’s been a misrepresentation in terms of the ability or qualifications of the provider and a misrepresentation of the degree of physician supervision.

Greg had mentioned this issue of whether or not mid-levels are qualified, and what kind of training they have. There definitely doesn’t seem like there are any uniform standards for that. The hospitals are going to have a lot of liability on that as well, because ultimately they are going to be responsible for whether the providers are properly credentialed, did they properly limit the credentials that they had, did they make sure that they were adequately trained or oriented. Actually, although there is probably not a real standardization, ACEP’s guidelines do say that there should be specialty training before a PA works in the ED and there should be supervisor orientation, training and continuing education. Likewise, SEMPA says in their statements that in order to work in the ED, a PA must have graduated from an accredited program and should maintain qualifications through ongoing emergency medicine training and CME, graduating from some sort of residency program and so forth. I think the problem is that even if you were to use those “qualifications,” they are so non-specific that virtually anyone would probably still qualify.

Mark Plaster:  Kevin, mid-levels are being looked at by government and insurance as the key to lowering the cost of healthcare. What we hear from you guys is that we are charging at 80 percent but we need to invest more . . . is it possible that we’re asking for something that cannot be done? That is, provide healthcare at less cost but more quality. Or in the end are we just simple going to relegate primary care to people with a masters degree and eventually pay the same?

Kevin Klauer: First, there is no way we will staff every ER in the country with a residency trained, board certified emergency physician – or even a physician for that matter – so we need to consider what other staffing models are out there. I think particularly with physician assistants – and we haven’t even talked about advanced practice nurses as midlevel providers – its probably the best cooperative staffing model we can look at that will preserve quality and reduce cost. Having said that, meeting the goals of the federal government and other third party payers is going to be a real challenge. Although third party payers and the federal government say they want to improve quality and reduce cost, their actions are 90% geared towards reducing costs and 10% towards maintaining quality – if we can possibly do that along the way of reducing cost. What I’m also seeing a problem with, particularly in my work with ACEPs quality and performance committee, is there are no good metrics out there, the federal government and third party payers are using billing data to determine what good quality emergency medical care is and other medical care is. You just can’t use that kind of data to assess quality, for a variety of reasons. So in order to maintain quality and reduce costs, you have to have good metrics. And I don’t think we have those metrics; I don’t think we have a way to assess it right now and I think third party payers and the federal government in particular are more than willing to sacrifice quality to reduce costs as a primary objective. And what concerns me further in emergency medicine is, my experience has been that many have been baited into the concept that developing a staffing model that reduces costs and maybe preserves quality and maybe using mid-level providers beyond where we should and has been a staffing model that has saved a staffing group or individual dollars. And when that has happened we have sent the message to third party payers and federal government that we embrace this concept and the quality must be good because we wouldn’t embrace it otherwise. So we’re leading those third party payers and government down that path that this is acceptable to us, but I do not believe that all those practices really represent all our feelings, and do they really exemplify good emergency medical practice. I don’t think they necessarily do. Having said that, what should mid level providers be able to do for us to help reduce costs. I think they should support the function of the emergency department in many critical ways, doing the procedures that are time consuming for the physician, really helping to facilitate care of the physician, initiating care in those cases that are really complicated. It’s all very valuable. I think mid level providers can provide an integral role in the emergency department. What I have concerns about is when some people try to determine what ICD9 code, using billing data, are safe for a mid-level provider to see. Well they can see sore throats, they can see strep throat, they can see bronchitis, they can see ankle sprains. The problem is, from a risk management standpoint, that when you send someone to the fast track to see a physician assistant and it’s a sore throat, all of a sudden a sore throat could never be epiglottitis, it can never be a retropharyngeal abscess. The ankle sprain is never compartment syndrome, it’s never a missed fracture. The bronchitis is never a pulmonary embolism, never a complicated pneumonia. And that’s why we can not use billing data to retrospectively determine what’s a reasonable subset of patients for a mid-level provider to see.

Greg Henry: I agree with Kevin on much of this, but I would point out something. Whenever we use the term high quality, what do we mean by that? Quality is adherence to a known standard. One thing about McDonalds is, it’s high quality, that is, the Big Mac tastes the same in Sweden as it does in Anne Arbor, Michigan. That’s extremely high quality. What we have to do is say straight out, what is it that they need to produce, what are the things we want to have accomplished, and then decide how we’re going to judge whether they have met a quality standard we can understand. I can argue that the best quality for everybody is to see me, and everything else is less quality. Well unfortunately that isn’t going to happen (probably fortunately it’s not going to happen). What’s really going to happen is we’ve got to decide what is an acceptable standard of care for the American people at this moment in time. Because anybody who believes there is going to be more money flowing into this system is just an idiot.

Mark Plaster:  Greg, you mentioned before about training and qualification. Should emergency physicians have significant, maybe even ultimate, input into the training and qualification standards for emergency medicine mid-level providers?

Greg Henry: That should be the given. Last week I was speaking at a PA program. If these people are going to practice with us, if we’re going to share things, we need to get involved in their training. After all, we wouldn’t ask that question about residents. We understand we have to be involved in the training. The joke is, we require more supervision of residents – even third year and 4th year residents – than we require of the mid levels, and I don’t think that’s right. What I think is actually happening is we’re talking out of both sides of our mouths at the same time when we say “All we want in the whole country is board certified emergency physicians,” and then even some of the major academic centers, 25% to 30% of their cases are seen by the mid-levels. You know what, it’s one way or the other. We either turn people out who can see people properly and have reasonable criteria they can follow, or we don’t. By the way, there are some very good studies that say the public in general, if people are honest with them, don’t care about this question. The University of Nebraska did a study where it asked people, if you had to wait another 30 minutes to see the doctor vs. seeing a PA immediately, would it be OK to see the PA? Seventy-five percent said yes, I’ll see the PA, because I don’t want to wait the half hour. I think doctors are sometime deluded by what the public actually thinks about the care they give out. And I’ve never seen a center where the PAs didn’t have better Press Ganey scores than the doctors.

Mark Plaster:  John, we’re talking about training. Most training for mid-level providers, PAs in particularly, is experiential, it’s on-the-job training. Do you advocate for essentially residency training in emergency medicine for mid-level providers, and do you feel there should be a certification for MLPs in emergency medicine. If so, who should sit on that board? Mid-levels, physicians, both?

John Graykoski: First off, as you all know, the curriculum for PA schools in this country are set by physicians, PAs and educators together, so it is a standardized curriculum and it pretty much matches the family practice training model. We are moving now through the national certification body to develop a certificate of added qualifications. What that basically does is document the person’s experiential skills, such as intubations and central lines and chest tubes, but also verifies basic educational and ongoing educational requirements. The first board test for that will take place this Fall, and that, of course, will be expanding. Now specifically to the issue of residency (and here I put my SEMPA hat back on) we have not taken an official stand on this, partly because there are a large variety of people coming into emergency medicine. In my own staff I have people who have been PAs on the battlefield in Afghanistan and Iraq. Some of these folks are coming in with twenty years of experience, so those folks probably wouldn’t benefit from a residency – they’ve had significant training and experience. So we’ve maintained the stand that the determination of practice is based on the physician/PA relationship; the physician decides what to delegate. Having said that, I’m going to take off my SEMPA hat and put on my administrator hat. The reality is that we do have a lot of people coming in to PA school today who don’t have the rich experience that our army medics have. Because of that, realistically looking to the future, residency training of some type is going to become a reality. There are quite a few programs that are now being set up in response to this. I think one of the drivers of this is that the large emergency physician groups desperately need to staff emergency rooms and need to bring people in with limited experience and then run them through training and bring their skills up to par so that they can utilize them within their systems. We’ve seen a few universities moving in this direction. One of the challenges, of course, is funding residency or post-graduate training, and that’s where we really run into some problems. People are reluctant to make that investment unless they are sure they’re going to have some benefit from it. So for a lot of the academic centers, it’s just a cost – they have nothing to realize from it. A lot of the physician groups do see the benefit – if they can train their own people and run them through their own form of residency, they hope to hire those people and retain them in the organization and make their money back on them. So from a personal standpoint, I think we are going to see the emergence of residency programs (for PAs). The University of West Virginia has a very excellent, didactically-oriented curriculum that basically follows the requirements found in the emergency physician residency program. So I think we’ll begin to see this develop. The big issue that counterbalances this is the cost of advanced training.

Mark Plaster:  Paul, let’s talk about the standard of care. We’ve always said that the standard of care is what a similarly-trained physician would do under similar circumstances, and not the ideal, not the retrospective evaluation. Let’s ask the same question about a mid-level. What is the standard of care for a mid-level? Is it what another mid-level provider would do? Or is it what a physician would do under the same circumstance?

Paul Casi: You are correct with respect to physicians in how you defined the standard of care. It is what reasonable, prudent or competent physician (in whatever specialty it is) would do under the same or similar circumstances. It’s supposed to be an objective standard, not a subjective standard based solely on what the physician in question would do. I don’t think there’s a lot of cases dealing specifically with PAs. Certainly with nurse practitioners, they are typically held to a similar type of standard, but it is based on the education and experience of a similarly-trained person. So for nurses, the standard is usually what a reasonable and competent nurse would do under similar circumstances. That being the case, I think the legal standard in most PA cases would be similar – what would a reasonably competent PA do. From a practical standpoint, that probably means, in addition to an emergency physicians, we’ll have a PA with emergency medicine experience to testify about that. I think from a practical standpoint, however, you also end up with the situation of what really ends up being the difference. Although the “legal standard” would be the same, I think it somewhat depends on what they’re doing. Intubation, for instance, should presumably be done in the same fashion whether it’s being done by an emergecy physician or any other providor. So I think some of it is more of a technical rather than a practical. The other question, from a practical jury perspective, is this: to the extent that the PA is taking on more responsibility, a jury is likely to conclude, regardless of what the legal instruction and standard is, that they voluntarily put themselves in the position of doing the same thing as a physician, and therefore they voluntarily put themselves in that same position legally. I don’t think the court would necessarily go that far, but from a practical standpoint, a jury may. It may be different depending on the situation, but the jury may expect that certain medical actions be done exactly the same if a providor is to undertake that service.

Another question is who exactly the PA is working for, and who have they been employed by. Putting aside issues of credentialing and supervision, if the PA is an employee of an emergency physicians group, that EP’s group is going to be sued, perhaps without even naming the PA as a defendent. Similarly, if the person is an employee of the hospital, they’re likely to be sued as well. Then, if it’s a hospital that’s being sued because of an employee that works there, the legal standard would be, “what would a reasonably prudent and competent hospital do under the same or similar circumstances.” At the end of the day, the legal standard is going to be more dictated by the type of provider, but from a practical standpoint, they may be held to the same or similar standard as a physician.

Greg Henry: I don’t carry a JD after my name, but in the cases that I’ve been involved with, there is an issue that hasn’t been discussed, and that is the fact that the nurse practitioner in many states has an independent license to practice. PAs do not. They are always dependent on a physician’s license. When we get sued, a nurse practitioner can be sued and the company can be sued, but the supervising doctor may not be sued. I’ve never seen a PA sued where the physician was not sued along with them. You are right, there is an agency theory here that says, if the physician group has hired that doctor or that PA, it will be the PA, the doctor and that group that will be named. And to not name all three will probably be legal malpractice.

Paul Casi: I think in generally that’s probably true. Although from a practical standpoint, in my personal practice in terms of who is sued, mid-level providers are typically named individually. However, if you know in advance the employment status of the individual, it would be more logical to sue the group than to attack a certain individual in front of the jury. But you are right, to be safe, most lawyers are going to name everyone.

Greg Henry: In the last case I was involved in, it was assumed by the plaintiff’s council that the PA had a responsibility to produce at the level of a doctor by virtue of supervision. This is the tack which everyone has taken in regard to residents. The residents should produce at the level of any other board certified physician by virtue of the supervision of that physician. I’ve never seen an individual standard of care for PAs developing in the country because by definition they are physician assistance.

Mark Plaster:  Kevin, there is a class of physicians that are caught in the middle. There is a strong push to have emergency physicians residency-trained and board certified. This means the residency-trained physicians are skipping over the non-boarded, non-trained physicians and hiring PAs. Aren’t we being hypocritically to say that practice track-trained physicians are not qualified to work in emergency departments but PAs are?

Kevin Klauer: As we motioned before, every emergency department in the country cannot be staffed with residency-trained board certified emergency physicians. However, most career EPs would agree that is the best standard, and if you are a career emergency physician, you have a lot of experience and you bring something to the table that is a value to this specialty even though you probably acknowledge that the best standard is for everyone to be residency-trained in emergency medicine.

To answer the core of your question, in a way its like they are saying, well I am going to discriminate against you because you don’t have residency training but I will go ahead and hire a mid-level provider to do my work for that is more qualified than you that will certainly be a hypocrisy. It also relates to the issues of supervision. If you’re going to hire a mid-level provider to reduce your costs and save you money, and claim it’s the same quality, there’s a problem if you’re not recognizing the career emergency physicians who are out there who are very qualified. But if you’re going to supervise those MLPs adequately, then it’s reasonable to say that under my supervision, the care is always directed by a residency-trained, board-certified doc, then it’s probably reasonable to say that this is overall a better plan than someone who has physician credentials but doesn’t have any emergency medicine experience.

Mark Plaster:  It is clear that in the coming days, as we attempt to bring down the price of medicine, a lot of people in a lot of different sectors are going to begin to look at many ways to provide quality care at a lesser cost. One of those will be the appropriate use of mid-level providers. But the devil is in the details. How will they be trained? How will they be certified, who will do the certification and how will they be supervised. It will be very important moving forward trying to streamline and economize that we accomplish the tasks that we’ve outlined here while maintaining quality.



# MDScott Gallagher 2011-09-08 15:00
Does anyone know about the document referred to by John Graykoski as required in critical access hospitals? I have never heard of such a requirement.

John Graykoski: A couple points here. One, CMS requires that PA services be billed at 85 percent of physician costs. And at least in the critical access hospitals any patient that enters the emergency room is presented with a document that they have to sign indicating that a physician will be present – perhaps at some distance – but a PA will see them. Patients have to consent to this in order to be seen.

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