BORIM Issues Guidance on Recent Changes to Practice of Medicine Regulations
The Massachusetts Board of Registration in Medicine (“BORIM”) recently finalized revisions to 243 CMR 2.00 (Licensure and the Practice of Medicine). These changes took effect on August 9, 2019. Because of the uncertainty resulting from certain of those changes, on September 6, 2019, BORIM issued guidance in the form of responses to “Frequently Asked Questions” (“FAQs”).
We highlight below some of the key provisions in BORIM’s updated regulations concerning the practice of medicine as augmented by the recent FAQs.
Perhaps the most significant change concerns the new and expanded requirements concerning patient informed consent for any diagnostic, therapeutic or invasive procedure, medical intervention or treatment. The regulations require written consent signed by the patient where disclosure of significant medical information, including the risks involved, would assist the patient in making an informed decision whether to undergo the proposed procedure, medical intervention or treatment. Attending physicians not only are required to obtain and record a patient’s written informed consent prior to any such procedure, intervention or treatment, but now must also inform the patient of the names of all of the individuals participating in the procedure, intervention, or treatment prior to the start time. This includes not only the names of other physicians such as the anesthesiologist or assistant surgeon but all physician extenders, such as a resident, fellow, physician assistant, advanced practice registered nurse, or other person authorized by the health care facility to participate in the procedure. Moreover, the attending physician or primary operator of a medical procedure must note in the patient’s medical record if they were absent for any part of the procedure, noting the time of the absence(s) and who was the attending physician or primary operator during the absence(s).
The FAQs address a number of questions raised by the physician community about the new regulation requiring written consent:
These new requirements will likely create undue administrative burdens on physicians and hospitals, as often the identity of other practitioners (such as an anesthesiologist) is not known in advance of the procedure.
Delegation of Medical Services
The updated regulations also expressly prohibit physicians from delegating medical services to individuals who are not licensed to perform such services in Massachusetts. Important to note here, medical assistants are not licensed in Massachusetts, but they have historically provided medical care to patients when and how a physician authorizes. This requirement was confusing and caused a lot of concern in the physician community; in the FAQs, BORIM stated that medical assistants and other skilled assistants can be involved in patient care under the supervision of a licensed physician as long as they are not performing a task that requires a license (e.g., MD, PA or NP). BORIM continued that the intent of the regulation was to prohibit unlicensed persons from performing activities requiring a license to practice medicine.
In its final FAQ, “You didn’t answer, my question, what can I do now,” BORIM replied that it would “continue to field questions on the new regulatory changes. If you have questions, please call our Call Center at 781-876-8230: Press 1, then Press 5.” We encourage all physicians who are still confused or have questions to make that call.
Verrill has been analyzing BORIM’s updated regulations and FAQs, and will continue to monitor developments in this area. For assistance with questions regarding these approved revisions, please reach out to Gary Rosenberg, Paul Shaw, or your regular Verrill attorney.
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