State laws and regulations that affect your medical practice
I. UNLICENSED PHYSICIAN AIDES
1. What tasks may a physician direct his or her unlicensed employee to administer?
Physicians may delegate administrative and technical or clinical tasks not involving the exercise of medical judgment, to those specially trained individuals instructed and directed by a licensed physician who accepts responsibility for the acts of such personnel.
A physician may delegate to any qualified and properly trained person the authority to administer drugs.
22 TAC § 169.3
2. May a physician bill for the services rendered by an unlicensed assistant?
While there is no specific State law addressing this issue, physicians are encouraged to contact third party payors and get written confirmation prior to billing for such services. For self-pay patients, physicians should establish written financial policies which address billing for services rendered by unlicensed personnel in accordance with State law.
II. LICENSED PHYSICIAN ASSISTANTS
1. What qualifications must an assistant have to be licensed as a physician assistant?
The Texas State Board of Medical Examiners (TSBME) will issue a physician assistant license to an applicant if the applicant:
A. submits an application on forms approved by the TSBME;
B. pays the appropriate application fee as prescribed by the TSBME;
C. successfully completes an educational program for physician assistants or surgeon assistants accredited by the Accreditation Review Commission for the Education of Physician Assistants (ARC-PA), or by that committee's predecessor or successor entities, and holds a valid and current certificate issued by the National Commission on Certification of Physician Assistants ("NCCPA");
D. certifies that he or she is mentally and physically able to function safely as a physician assistant;
E. has a license, certification, or registration as a physician assistant from another licensing authority that is in good standing;
F. is of good moral character;
G. is of good professional character;
H. for applicants who apply for a license on or after January 1, 2007, passes the national licensing examination required for NCCPA certification within no more than six attempts;
I. for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence examination ("JP exam"); and
J presents evidence that any continuing education requirements have been completed as are required under the law.
22 TAC § 185.4
2. Who may employ a physician assistant?
A physician assistant may be employed by a physician, health care facility, patient home, or nursing home.
22 TAC § 185.10
3. What regulations must the employer of a physician assistant follow?
A. A physician assistant must be supervised by a supervising physician who oversees the activities of, and accepts responsibility for, medical services provided by the physician assistant.
B. Supervision of a physician assistant by a supervising physician must be continuous. The supervision does not require the constant physical presence of the supervising physician where physician assistant services are being performed, but, if a supervising physician is not present, the supervising physician and the physician assistant must be, or must be able to easily be, in contact with one another by radio, telephone, or another telecommunication device.
Tex. Occ. Code §204.202
C. A supervising physician must:
1. hold an unrestricted and active license as a physician in this state;
2. notify the medical board of the physician's intent to supervise a physician assistant;
3. submit to the TSBME a statement that the physician will:
(i) retain professional and legal responsibility for the care provided by the physician assistant; and
(ii) receive approval from the TSBME to supervise the physician assistant.
Tex. Occ. Code §204.205
4. What duties may a physician assistant perform?
The physician assistant may provide, within the education, training, and experience of the physician assistant, medical services that are delegated by the supervising physician, including but not limited to:
A. obtaining patient histories and performing physical examinations;
B. ordering and/or performing diagnostic and therapeutic procedures;
C. formulating a working diagnosis;
D. developing and implementing a treatment plan;
E. monitoring the effectiveness of therapeutic interventions;
F. assisting at surgery;
G. offering counseling and education to meet patient needs;
H. requesting, receiving, and signing for the receipt of pharmaceutical sample prescription medications and distributing the samples to patients in a specific practice setting where the physician assistant is authorized to prescribe pharmaceutical medications and sign prescription drug orders at a site;
I. the signing or completion of a prescription; and
J. making appropriate referrals.
22 TAC § 185.10
III. NURSE PRACTITIONER
1. What qualifications must an individual have to be an advanced practice nurse?
The Texas Board of Nurse Examiners (BNE) will issue an advanced practice nurse (APN) license to an applicant if he or she:
A. submits to the BNE a sworn application that demonstrates the applicant's qualification, accompanied by evidence that the applicant:
1. has good professional character; and
2. has successfully completed an approved program of professional or vocational nursing education. The BNE may waive this requirement for a vocational nurse applicant if the applicant provides satisfactory sworn evidence that the applicant has completed an acceptable level of education in:
i. a professional nursing school approved by the BNE; or
ii. a school of professional nurse education located in another state or a foreign country.
B. has completed a master's degree in the discipline of nursing;
C. has completed a minimum of nine semester credit hours or the equivalent in a specific clinical major. Clinical major courses must include didactic content and offer clinical experiences in a specific clinical specialty/practice area;
D. has completed pharmacology and related pathology education approved by the BNE;
E. has completed continuing education in clinical pharmacology and related pathology; and
F. acquires a prescription authorization number approved by the BNE.
22 TX ADC § 221.3
2. What duties may be performed by an APN?
The scope of practice of particular specialty areas are defined by national professional specialty organizations or APN organizations recognized by the BNE. The APN may perform only those functions which are within that scope of practice and which are consistent with the Nursing Practice Act, BNE rules, and other laws and regulations of the State of Texas including:
E. care and counsel;
F. and health teachings of persons who are ill, injured or infirm or experiencing changes in normal health processes; and in the promotion and maintenance of health or prevention of illness.
22 TX ADC § 221.13
3. What are the requirements for issuing prescriptions and orders; dispensing medications?
A. A physician may delegate prescriptive authority at the following locations:
1. the practice location where the physician spends the majority of the physician's time;
2. a licensed hospital;
3. long-term care facility, or adult care center where both the physician and the physician assistant or APN are authorized to practice;
4. a clinic operated by or for the benefit of a public school district for the purpose of providing care to the students of that district and the siblings of those students, if consent to treatment at that clinic is obtained; an established patient's residence; or
5. where the physician is physically present with the APN.
B. At a physician's primary practice site or alternate practice site1 , a licensed physician authorized by the BNE may delegate to a physician assistant or an APN acting under adequate physician supervision the act or acts of administering, providing, carrying out or signing a prescription drug order as authorized through physician's orders, standing medical orders, standing delegation orders, or other orders or protocols as defined by the BNE. Providing and carrying out or signing a prescription drug order is limited to dangerous drugs and controlled substances in Schedules III--V and must comply with other applicable laws.
C. Physician supervision of the carrying out and signing of prescription drug orders must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the advanced practice nurse or physician assistant. A physician must provide continuous supervision, but the constant physical presence of the physician is not required.
D. A physician's authority to delegate the carrying out or signing of a prescription drug order is limited to:
1. three (3) APNs at the physician's primary or alternate practice site; and
2. the patients with whom the physician has established or will establish a physician-patient relationship, but this must not be construed as requiring the physician to see the patient within a specific period of time.
E. Physician supervision is adequate if the delegating physician:
1. is on-site with the APN at least 20% of the time;
2. randomly reviews at least 10% of the medical charts of patients seen by a APN at the site; and
3. is available through direct telecommunication for consultation, patient referral, or assistance with a medical emergency.
F. Delegation of prescriptive authority at a facility-based practice site.
1. A licensed physician authorized by the BNE must be authorized to delegate, to one or more APNs acting under adequate physician supervision whose practice is facility based at a licensed hospital or licensed long-term care facility, the carrying out or signing of prescription drug orders if the physician is the medical director or chief of medical staff of the facility in which the APN practices, the chair of the facility's credentialing committee, a department chair of a facility department in which the APN practices, or a physician who consents to the request of the medical director or chief of medical staff to delegate the carrying out or signing of prescription drug orders at the facility in which the physician assistant or APN practices. Providing and carrying out or signing a prescription drug order is limited to dangerous drugs and controlled substances in Schedules III--V and must comply with other applicable laws.
2. A physician's authority to delegate prescriptive authority is limited as follows:
i. the delegation is pursuant to a physician's order, standing medical order, standing delegation order, or other order or protocol developed in accordance with policies approved by the facility's medical staff or a committee thereof as provided in facility bylaws;
ii. the delegation occurs in the facility in which the physician is the medical director, the chief of medical staff, the chair of the credentialing committee, or a department chair;
iii. the delegation does not permit the carrying out or signing of prescription drug orders for the care or treatment of the patients of any other physician without the prior consent of that physician;
iv. delegation in a long-term care facility must be by the medical director and the medical director is limited to delegating the carrying out and signing of prescription drug orders to no more than three advanced practice nurses or physician assistants or their full-time equivalents; and
v. a physician may not delegate at more than one licensed hospital or more than two long-term care facilities unless approved by the BNE.
vi. Physician supervision of the carrying out and signing of a prescription drug order must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the advanced practice nurse or physician assistant. A physician must provide continuous supervision, but the constant physical presence of the physician is not required.
G. Documentation of supervision.
1. A physician must document any delegation of prescriptive authority to an APN by a protocol. The physician must also maintain a permanent record of all protocols he or she has signed, showing to whom the delegation was made and the dates of the original delegation, each annual review, and termination.
2. If the APN is located at a site other than the site where the physician spends the majority of his or her time, physician supervision must be further documented by a permanent record showing the names or identification numbers of patients discussed during the daily status reports, the times when the physician is on site, and a summary of what the physician did while on site. The summary must include a description of the quality assurance activities conducted and the names of any patients seen or whose case histories were reviewed with the APN. The supervising physician must sign the documentation at the conclusion of each site visit. Documentation is not required if the APN is permanently located with the physician at a site where the physician spends the majority of the physician's time.
H. If a delegating physician will be unavailable to supervise the APN as required by this section, arrangements must be made for another physician to provide that supervision. The alternate (substitute) physician providing that supervision must affirm in writing and document through a permanent record where the physician assistant or APN is located, that he or she is familiar with the protocols or standing delegation orders in use and is accountable for adequately supervising prescriptive delegation provided pursuant to those protocols or standing delegation orders. The permanent record must be kept with the protocols or standing orders. The permanent record must contain dates of the alternate physician supervision and be signed by the alternate physician acknowledging this responsibility. The physician assistant or APN is responsible for verifying that the alternate physician is a licensed Texas physician holding an unrestricted and active license.
I. Prescription forms must comply with applicable rules adopted by the Texas State Board of Pharmacy. Prescriptions issued pursuant to this section may only be written for dangerous drugs and controlled substances in Schedules III--V. A delegating physician is responsible for devising and enforcing a system to account for and monitor the issuance of prescriptions under the physician's supervision.
22 TAC § 193.6
4. What are the Standards for joint protocols between APN and collaborating physician?
A. The degree of detail within protocols/policies/practice guidelines/clinical practice privileges may vary in relation to the complexity of the situations covered by protocols, the advanced specialty area of practice, the advanced educational preparation of the individual, and the experience level of the individual APN.
B. Protocols or other written authorization:
1. should be jointly developed by the APN and the appropriate physician(s);
2. must be signed by both the APN and the physician(s);
3. must be reviewed and re-signed at least annually;
4. must be maintained in the practice setting of the APN;
5. must be made available as necessary to verify authority to provide medical aspects of care; and
6. should include a statement that the APN must retain professional accountability for advanced practice nursing care.
22 TX ADC § 221.13
5. What is the penalty for failure to establish and implement joint protocols consistent with the standards set forth by the BNE?
Any violation of the joint protocol by an APN or physician may be deemed professional misconduct or other grounds for disciplinary sanction by his or her respective licensing board.
1 A practice site is one in which services similar to the services provided at the delegating physician's primary practice site are provided and located within 60 miles of the delegating physician's primary practice site.
Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.