A recent issue of the Minnesota Board of Nursing's newsletter, For Your Information, contained an article regarding the legality of Minnesota nurses who carry out orders issued by physicians who are not licensed in the state of Minnesota. The position taken by the Board of Nursing is that for a Minnesota nurse to legally carry out orders for the medical care of a patient located in Minnesota, the orders must be issued by a physician holding a valid Minnesota license. The Board of Medical Practice reviewed the article prior to its publication and concurred with the position taken by the Board of Nursing. Since the publication of the article, both the Board of Nursing and the Board of Medical Practice have received a substantial number of inquiries and requests for clarification.
Some of the questions raised can be addressed and answered at this time, while others will require additional research or policy development. Before starting the discussion of the questions, however, it may be useful to simply state that the sole reason the Board of Medical Practice, or any other professional credentialing or licensure agency, in Minnesota or any other state, exists is to protect the public from substandard practice. The only way the Board is able to do this is to have jurisdiction over the practitioner. The way this is accomplished under American law is for the practitioner to hold a license or other credential issued by the state. This is a long and technical way of saying that the only way the Minnesota Board of Medical Practice can protect the public from substandard medical care is to make sure that the people practicing in Minnesota meet standards by holding a valid Minnesota license.
The answer is that it has not changed. For as long as physicians have been licensed in Minnesota, over 108 years now, the law has required anyone who "undertakes..to treat in any manner or by any means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity or defect of any person.." to carry a valid Minnesota license.
Some have suggested that as long as the physician is never in Minnesota, a license is not needed. The fact is, it is the location of the patient which makes the license necessary. If the patient is in Minnesota, the treating physician must have a valid Minnesota license.
The most common setting for questions to arise is border communities in Minnesota, where patients are residents in health care facilities. Nursing staff in these facilities have been asked to carry out orders from physicians in other states, who do not have Minnesota licenses. The Board has advised these facilities to seek arrangements with the clinics in the bordering states to have a Minnesota licensed physician either issue the order, or have the order countersigned by a Minnesota licensed physician. In the instances where the clinic does not have a Minnesota licensed physician, the Board has advised the Minnesota facility to seek arrangements with a Minnesota physician, for example the Medical Director, to review and countersign the order. This has been satisfactory in most instances, and is supported by the facts that Minnesota rules require facilities, such as nursing homes, to designate a licensed physician for the "supervision of the care and treatment of the patient or resident during the person's stay.."
It is noteworthy that the reverse is also true. That is, a physician licensed in Minnesota cannot treat patients in a bordering state without holding a valid license in that state.
Another area of question has dealt with out-of-state residents who attend camps in Minnesota. Such settings are governed by the Minnesota Child Camp laws. (M.S. 144.71(1994)) A rule promulgated under this statute requires campers to undergo a physical examination prior to admittance to the camp. Each camper must present a certificate of health based on a physical examination conducted by a licensed practitioner not more than 90 days prior to admittance. (Minn. R. 4630.4300.) This certificate of health is to include instructions relative to the limitation of a camper's participation in camp activities. However, the rule is silent regarding any orders for medical care the camper may bring from an out-of-state physician.
These same Minnesota Child Camp laws require that the camp operator designate a practitioner as the camp's physician. The solution is for the out-of-state physician to establish a formal consultation relationship with the physician designated as the camp physician, and to issue orders or order changes through the camp doctor. This formal "actual consultation" relationship is one which is recognized by Minnesota law, and does not require the out-of-state physician to carry a Minnesota license.
Other questions have been asked about the legality of filling prescriptions written by out-of-state physicians. The Pharmacy Board has long held that a Minnesota pharmacist may legally fill the prescription for a legend drug written by any practitioner holding a valid license which allows the practitioner to prescribe such a drug, regardless of the state of origin of the license. A law signed this session, H.F. 1363, Session Laws Chapter 66, extends that to prescriptions for controlled substances in Schedules II, III, and IV.
There are other questions left unanswered, including who should bear the costs of consultation or review and countersignature of orders by a Minnesota licensed physician; how those costs should be assessed and administered; the apparent differences in approaches to this question by the regulatory systems in place for differing health care professions; how this relates to the reality of the regional nature of the economics and delivery system for health care; and how this relates to interstate aspects of telemedicine and other portions of the delivery of health care.
For these answers, more work, research, and perhaps legislation will be necessary. For now, suffice it to say: The practice of medicine in Minnesota requires a valid Minnesota license, and has for nearly 109 years.
*Legislation was subsequently passed in 1996 allowing a nurse to perform medical care procedures and techniques at the direction of a U.S. licensed physician, podiatrist, or dentist who gave direction after examining the patient.
Source: Minnesota Board of Medical Practice Update Newsletter, Spring 1995
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