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The Legal Basics of the Pregnancy Resource Medical Clinic Model

July 2012
By: Thomas Glessner and Audrey Stout

There is a significant misunderstanding on the part of some pregnancy resource medical clinics (PRMCs) concerning what it means to be a medical clinic. NIFLA was founded in 1993 as the pioneer and visionary medical/legal organization advocating that PRCs become medical clinics. This move was prompted from a lawsuit initiated by Planned Parenthood (PP) against PRCs associated with The Right to Life League of Southern California. PP's complaint was that these PRCs were "practicing medicine without a license" by offering free pregnancy tests and giving the results of the test to the client.

Of important note — the PRCs involved lost this lawsuit. The trial court held that pro-life PRCs who provide the results of a pregnancy test to a client are providing a diagnosis of pregnancy and thus, are illegally practicing medicine, unless they are licensed as medical clinics under the supervision of a licensed physician.

ULTRASOUND EXAMS SHOULD NEVER BE PERFORMED BY ONE WHO DOES NOT POSSESS A LICENSE OR CREDENTIAL TO PERFORM THEM.

Based upon this legal precedent, NIFLA began to promote the concept of PRCs becoming medical clinics so they can legally offer pregnancy tests and sonograms under the direction of a physician. Out of this setback grew the medical clinic movement and the legal means to offer pregnant mothers medically indicated ultrasounds.

There are foundational legal basics that need to be understood (and practiced) by all PRMCs who offer medical services to protect from the type of legal action brought by PP for practicing medicine without a license. They are as follows:

Performing an ultrasound exam is a diagnostic procedure and constitutes the practice of medicine. Guidelines set forth by the American Institute of Ultrasound in Medicine (AIUM) and American College of Obstetricians and Gynecologists (ACOG) outline the proper use of sonography. As a medical procedure, an ultrasound exam can be justified only by a recognized medical indication. These guidelines state, "Fetal ultrasound should be performed only when there is a valid medical reason, and the lowest possible ultrasonic exposure settings should be used to gain the necessary diagnostic information." Though sonography is a powerful tool that clearly results in increased maternal fetal bonding, legally and medically speaking, maternal-fetal bonding is not a recognized medical indication to justify the performance of an ultrasound exam.1

It should be communicated to all patients that the limited ultrasound exam provided is a medical diagnostic procedure. A positive pregnancy test does not confirm or "diagnose" pregnancy. Thus, a limited ultrasound exam is needed to provide three pieces of diagnostic information: 1) the presence of an intrauterine pregnancy (IUP); 2) the estimated gestational age (EGA), as measured from the first day of the last menstrual period (LMP); and 3) the presence of fetal cardiac activity. Proper consent forms (prepared by NIFLA) for the patient to sign prior to the exam clarify this information and state that the limited ultrasound does not diagnose fetal well-being and or fetal anomalies.

Ultrasound exams must be performed by medical professionals trained in ultrasound. Such medical professionals must have both didactic education and hands-on training with direct supervision by an RDMS or a physician to obtain competency. NIFLA's Institute in Limited Obstetric Ultrasound provides the foundational didactic education for nurses to perform limited ultrasound at PRMCs. Evidence of competency in skill should be documented in the professional's personnel file. Ultrasound exams should never be performed by one who does not possess a license or credential to perform them. The Association of Women's Health, Obstetric and Neonatal Nurses (AWHONN) has nationally recognized guidelines for Registered Nurses performing ultrasound. Radiologic Technologists (RTs) credentialed and licensed in most states are cross-trained in sonography. Nurse Practitioners and Physician Assistants are also appropriate candidates for education and training in ultrasound. In order to properly perform ultrasound examinations, all such medical professionals must be supervised by a physician licensed to practice medicine in the state.

AS A MEDICAL CLINIC, YOU MUST HAVE MEDICAL PERSONNEL PROVIDING MEDICAL SERVICES. 

Some frequently asked questions from PRMCs regarding the performance of ultrasound exams are:

Q. We have a nurse whose license has not been renewed. Can she scan as long as she is under our physician's supervision?
A. No. She must renew her license first. The medical standard of practice requires that those who perform ultrasound exams not only be competent to do so, but that they also have a current professional license that allows them to do so.

Q. But our physician is OK with a non-licensed person scanning. Is it alright then?
A. No. Every medical professional should read their state's practice act to clarify if the performance of ultrasound is within their scope of practice. Individual licensed healthcare providers, such as registered nurses, are held accountable for their actions. An employer or physician cannot expand a nurse's scope of practice if she does not have a legally recognized license, with documented education, and training to perform ultrasound.

Q. We have a sonographer who has completed sonography school, but is not yet registered by having passed her registry exams. Can she do sonograms at our PRMC?
A. Not without direct supervision by someone with a medical credential trained in sonography. As a medical clinic, you must have medical personnel providing medical services. This person has no medical credential behind her name that is recognized as legally valid.

Q. Can't we just show women their babies as an educational part of our ministry?
A. No. The provision of ultrasound constitutes the practice of medicine. As such, it must always be used under the direction of a licensed physician and must always be justified by a medical indication. To protect patients, standards which utilize medical professionals with a high level of ability in assessment, scanning skill, and conscientious adherence to scanning protocols in the PRMC must be in place.

Biblically, the term "ministry" means service and should never be an excuse for offering less than excellence in that service "as to the LORD." Women and their unborn deserve our best. To do less exposes the life protecting and affirming work of PRMCs to vicious charges of being fake or bogus clinics and to possible legal and legislative action.

Thomas A. Glessner is President of NIFLA (www.nifla.org) and can be contacted at 540-372-3930 or NIFLA@aol.com. Audrey Stout is the national NIFLA nurse manager consultant.

References
1. American Institute of Ultrasound in Medicine. AIUM practice guideline for the performance of obstetric ultrasound examinations. 2007



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