By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C.
Physician supervision of certified registered nurse anesthetists (CRNAs) was the topic of a recent opinion from the Texas Attorney General (AG). In Opinion No. KP-0353, AG Ken Paxton addressed whether the Texas Medical Practice Act requires a physician to supervise a CRNA to whom the physician delegated the administration of anesthesia.
The Texas Medical Practice Act governs the practice and license of physicians and certain other practitioners. Chapter 157 of the Act addresses physician delegation of medical acts. This chapter authorizes a physician to delegate to a CRNA “the ordering of drugs and devices necessary for the nurse anesthetist to administer an anesthetic or an anesthesia-related service ordered by the physician” in a hospital or an ambulatory surgical center (ASC).
On August 12, 2020, the Texas Medical Board (TMB) requested an opinion from the AG and urged the AG “to unequivocally clarify that Texas law requires supervision of CRNAs by physicians” under Chapter 157 of the Texas Medical Practice Act. There is an interesting history behind the TMB’s request. According to the TMB, certain Texas professional nurse associations and CRNAs have claimed that CRNAs “have ‘independent’ practice in the field of anesthesia.” The TMB has taken issue with such a position and has previously proposed amendments to the TMB’s rules to “clarify that a CRNA does not have independent practice authority.”
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Specifically, on November 8, 2019, the TMB issued proposed amendments to its delegation rules indicating that physicians could delegate to CRNAs so long as the CRNA was “acting under adequate physician supervision.” The proposed amendments also provided that a CRNA “does not possess independent authority to administer anesthesia without delegation by a physician” and that a “delegating physician is ultimately responsible for the [CRNA] performing delegated acts.” Moreover, the proposed amendments indicated that a physician who issued a delegation order that allowed for “the exercise of independent medical judgment or treatment shall be subject to having his or her license to practice medicine . . . revoked or suspended.”
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The TMB requested public comments on its proposed amendments. In response, the staff of the Federal Trade Commission (FTC) issued a letter to the TMB dated December 6, 2019.
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The FTC operates to prevent unfair competition and unfair acts that affect commerce. In the letter, the FTC staff urged the TMB to reevaluate the proposed amendments to the delegation rule regarding CRNAs. The FTC staff noted that the TMB’s proposed rules appeared “to impose additional supervisory requirements” and “additional exposure to potential liability for Texas physicians.” Further, the FTC staff commented that the TMB’s proposed amendments “seem to exceed, rather than implement, Texas law.”
The FTC staff expressed concern that the proposed amendments’ supervisory requirements and increased exposure to liability could negatively affect the availability and/or cost of anesthesia services, especially in rural and medically underserved areas of Texas. The FTC’s letter noted that 116 Texas counties do not have practicing anesthesiologists; 64 of the state’s 85 critical access hospitals are in counties without anesthesiologists; and 33 of such hospitals are in counties where CRNAs are the only licensed providers of anesthesia services. As such, the FTC staff urged the TMB “to consider whether CRNAs can help alleviate access problems associated with specialist physician shortages, in a manner consistent with patient health and safety.”
After receiving the FTC letter and other comments, the TMB withdrew the proposed amendments on May 8, 2020. Three months later, the TMB requested the AG to issue an opinion indicating that the Medical Practice Act requires physician supervision of CRNAs. The Texas AG declined to issue such opinion. Rather, the AG found that a physician who delegates to a CRNA the administration of anesthesia and anesthesia-related services in a hospital or ASC is not required by the Texas Medical Practice Act to supervise the actions taken by the CRNA.
Nonetheless, the AG emphasized that there may be other laws, independent of the Texas Medical Practice Act, that may require physician supervision of CRNAs. For example, the Medicare Conditions of Participation require physician supervision of CRNAs under certain circumstances. Likewise, the Texas Controlled Substances Act requires a physician to be present when a CRNA administers controlled substances. Thus, the AG concluded that the need for physician supervision of a CRNA “will depend on the specific act delegated, the type of facility . . . and any relevant regulations of that facility.”
The AG opinion is a good reminder for hospitals that scope of practice laws such as the Texas Medical Practice Act and the Texas Nursing Practice Act are not the only laws relevant to determining the practice prerogatives of practitioners. Moreover, all relevant laws should be reviewed and considered when developing policies and standards regarding the practice of advanced practice professionals in hospitals.