From KMS Executive Director Rachelle Colombo:
Although the legislature has long since adjourned, the implementation of newly passed laws can be a long and often confusing process. This is certainly the case with HB 2279, regarding APRN practice, which took effect on July 1 under temporary regulations promulgated by the Kansas State Board of Nursing.
As we last reported, Kansas's State Rules and Regulations Board considered the proposed temporary regulations on June 30 and approved three out of the seven proposed regulations. At that time, the board did not approve four of the proposed regulations in response to KMS testimony that these regulations went beyond what was authorized by the plain language of the law. KMS pointed out that while HB 2279 eliminated the need for APRNs to have written prescribing protocols, the remaining portions of the Kansas Nurse Practice Act remain unchanged and thus APRNs’ authorized scope of practice remains otherwise unchanged. KMS testified that the four regulations in question would have allowed APRNs to practice medicine, which — apart from the prescribing of drugs — the legislation clearly did not authorize. The board agreed that the four regulations in question appeared to raise questions about whether they authorized APRNs to practice medicine, which would be beyond what the legislation allowed.
On July 19, Representative Barb Wasinger and Senator Kellie Warren requested reconsideration of their earlier decision on the temporary regulations that were previously not approved. The board met and voted to reverse their previous action and to instead approve all seven regulations over KMS objections. KMS was not made aware of this meeting, nor did we have the opportunity to provide testimony.
Additionally, the Joint Committee on Administrative Rules and Regulations, a legislative body that forwards proposed permanent regulations for public comment, met and took up the same seven proposed regulations for permanent implementation. KMS provided testimony outlining our concerns and our recommendations to eliminate confusion by replacing references to “medical treatment” with language that mirrors the law, authorizing “nursing” treatment without a collaborative practice agreement.
The committee did not take formal action, but the proposed permanent regulations now automatically advance to the public comment period that begins on September 6. It is expected that the Kansas State Board of Nursing is unlikely to make any changes to the regulations during the public comment period, after which the permanent regulations will take effect.
These are the proposed regulations, which KMS objects to:
The enactment of the temporary regulations and advancement of the proposed permanent regulations could lead some APRNs to believe they may perform acts that constitute the practice of medicine and surgery without physician involvement or supervision. The Kansas State Board of Nursing has posted new guidance here.
The Kansas State Board of Healing Arts and Representative Jim Kelly have formally requested an opinion from the Kansas Attorney General about whether the law authorizes an APRN to independently perform acts that constitute the practice of medicine without explicit statutory authority or physician delegation. Unfortunately, the Attorney General has not yet responded to these requests for a legal opinion on the issue of whether the regulations permit more than is authorized by the Kansas Nurse Practice Act. Absent an opinion from the Attorney General clarifying the scope of law, the regulations will likely take effect without changes.
While this development is problematic for physicians, nurses and hospitals seeking clarity on their individual and collective roles, it is not yet settled law.
We have updated our FAQs with guidance from legal counsel and hope it will be useful during this interim period of changing and challenged regulations.
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