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Legalities of a telephone nurse triage system

By Edward J. Kabala, Esq.

Highmark Blue Cross Blue Shield has begun to implement a telephone triage system, operating under the names “Blues on Call” and “Highmark After Hours,” under which patients can contact nurses using a toll-free number to obtain, among other things, direct referrals to specialists. The program authorizes the nurses to select one of four options for each patient call: self-care instructions, referral to a primary care physician, specialist referral or emergency room referral. The program provides for limited reporting to the primary care physicians of patient contacts with Blues on Call nurses.

Both the Allegheny County Medical Society and the Pennsylvania Medical Society have raised serious concerns regarding this program. The Societies have questioned whether the program involves the unauthorized practice of medicine in Pennsylvania by individuals who are not licensed to practice medicine. Additionally, elements of the program constitute the practice of nursing, and if staffed by individuals not licensed to practice nursing in Pennsylvania, may violate the Nursing Practice Act as well. The Societies have appeared before the Pennsylvania Board of Medicine to raise these issues, and as of this writing are awaiting a response.

Highmark is not the only organization to adopt a telephone triage system. The societies are aware that other insurers, hospitals and other providers have developed call-in services of various types, some of which are staffed by nurses. Although it was Highmark’s Blues on Call program that brought these issues to the attention of the Societies, their concerns regarding the Commonwealth’s requirements for licensure of physicians and nurses would apply equally to all programs that are substantially similar to Highmark’s.

The Commonwealth of Pennsylvania has concluded that the safety of its citizens requires that those authorized to practice the professions of medicine and nursing in this Commonwealth should be licensed and monitored by its professional boards. The Pennsylvania State Board of Medicine defines the practice of medicine as, “any professional contact, which results in a documented medical opinion, and which affects the diagnosis or treatment of a patient.” The Pennsylvania Nursing Practice Act defines the “professional practice of nursing” as the “diagnosing and treating of human responses to actual or potential health problems through such services as case findings, health teaching, health counseling, provision of care supportive to or restorative of life well-being, and executing medical regimes as prescribed by a licensed physician or dentist….”

There is a firm distinction between a nursing diagnosis and a medical diagnosis. Pennsylvania statute defines a nursing diagnosis as the “identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.” Although the statutes do not define a medical diagnosis, Webster’s Medical Desk Dictionary defines it as the identification of a disease based on its signs and symptoms. The main difference between the two types of diagnoses is that the nursing diagnosis does not make a final conclusion about the identity and cause of the underlying disease.

In the Blues on Call triage system, a patient who believes that he or she is in need of medical attention is told by Highmark that he or she can call a Highmark designee rather than a primary care physician (PCP). The program is not limited to nights or weekends or other times when the patient’s PCP may be difficult to reach. The calls are received by nurses employed by Access Health, Inc., the Colorado-based company with whom Highmark has contracted to operate the triage program. After a telephone discussion or consultation, the designee will: give self-care instructions, make an emergency room referral, send the member to the PCP, or make a specialist referral.

If the patient uses the Blues on Call program then the designee will arrive at his/her recommendation through a series of questions and answers prompted by the use of computer algorithms which, according to Barry Woolcott, M.D., chief medical officer of Access Health, Inc., were developed by a panel of physicians including full-time employees of Access and a “national panel” of physicians, with unspecified levels of local review. Based on the patient’s answers and the designee’s interpretation of those answers, the designee will determine the cause of the problem (a diagnosis) and make one of the above recommendations. In essence, it appears as though the designees are taking the place of the PCPs, as they are consulting with patients to determine the chief complaint and then going through a checklist to determine the specific illness and the best short-term course of action.

Is the advice and recommendations being given out by the designees equivalent to medical advice or a diagnosis? According to the above definition of a diagnosis, when the nurses use the computer checklist to determine the nature and the extent of the problem, they are identifying an illness. The designees do not know the patient’s history or have access to the patient’s medical records. The designees are acting independently and are not required to even consult with the patient’s treating physician(s); the designees merely report their conclusions and actions to the PCP via a fax which may or may not state the rationale for their decision. In cases in which self-care is recommended, estimated at 41 percent by Dr. Woolcott based on historical data, the current system does not even generate a report to the PCP. The designees are placed in positions where they are forced to make decisions based on their own opinions and conclusions, ergo a diagnosis of illnesses and diseases. Nowhere is this independence more clearly seen than in the ability of the designee to determine the identity and type of specialist or facility to which the patient is referred.

Registered nurses are typically authorized to make assessment of persons who are ill and to render a nursing diagnosis in their capacity as professionals. For example, a nursing diagnosis could be a situation where the nurse finds or fails to find symptoms described by a physician in standing orders and protocols. The nurse would identify symptoms for the purpose of administering courses of treatment prescribed by the physicians. The nursing regimen is always designed to function in consultation with the treating physician or other physicians licensed in Pennsylvania. Further, the protocols used in the nursing regimen would have been developed by a facility or practice with specific knowledge as to the capability of their nursing staff and the accessability of the physicians.

Pennsylvania is not the only jurisdiction struggling with the evolution of the practice of professions. Courts and medical boards in Massachusetts, Wyoming, Arizona and the District of Columbia have been faced with issues arising from out-of-state physicians’ participation in in-state medical decisions, including telephone triage and utilization review, and the trend is to define such activities as the practice of medicine.

Questions have also arisen concerning primary care physician liability under the Blues on Call program. Access Health has indicated that it will indemnify Highmark and its subscribers for adverse outcomes that are their fault, but the terms and extent of such indemnification have not been formalized. Could a PCP be liable if a Blues on Call designee without access to medical records refers a patient to the wrong type of specialist or to an unqualified specialist? Does a PCP assume any liability merely by participating in the Blues on Call program? Would a PCP be deemed to agree with a referral if he or she does not immediately respond to a faxed notice of a Blues on Call referral from Highmark, and if so, who would be liable if the referral was inappropriate? Who bears the liability if the designee recommends self-care and the patient needed medical attention? Exactly what circumstances would trigger the proposed indemnification? Would ERISA preempt Access Health’s indemnification obligations? These liability issues will have to be addressed before any triage system can be effective.

Nursing triage systems are not a bad idea per se, if they can be cost effective, increase efficiency, and eliminate unnecessary visits to emergency rooms and PCPs. However, within any system it must be readily apparent where to draw the line between cost and convenience on the one hand, and patient safety on the other. Triage systems need to be established with the laws of the Commonwealth in mind.

Edward J. Kabala, Esq., is a principal in the law firm of Kabala & Geeseman in Pittsburgh.

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