Yes. For our purposes, internal moonlighting is defined as additional optional training within the scope of a training program, provided it occurs under the direction of a faculty member associated with the training program; is in compliance with the training requirements including but not limited to requirements for faculty supervision and work hour limitations; and is in the same specialty as the training program or approved by the program director as a training area related to the specialty.

The authority to delegate is found in Chapter 157 of the Texas Occupations Code, and Title 22 of the Texas Administrative Code, Section 193. A physician is allowed to delegate certain duties to a qualified and properly trained person acting under the physician’s supervision:

1) if in the opinion of the delegating physician the act can be properly and safely performed by the person to whom the medical act is delegated;
2) the act is performed in its customary manner; and
3) the performance of the act by the delegate is not in violation of any other statute.

It is clear that AAs can be delegated certain tasks under Chapter 157. The question is the extent allowable of such delegation. The key provision that needs to be examined is likely “not in violation of any other statute.”

Although the Nursing Act describes what a CRNA can do in regard to anesthesia, there is overlap of regulation of CRNAs between the Medical Board and Nursing Board. CRNAs are subject to physician delegation under the Medical Practice Act. The delegating physician can limit what a CRNA is allowed to provide under a Prescriptive Authority Agreement (PAA) or Standing Order, despite what may be allowed under Nursing Board rules and regulations.

The level of supervision required for any AA (or any delegated provider) is determined based on training, knowledge, and experience, as determined by the physician. For CRNAs, whether any level of physician supervision is required will depend upon those same factors, in addition to applicable federal and state statutes, regulations, bylaws, and ethical standards, if any. However, AAs and CRNAs cannot practice independently and require physician delegation. A hospital or facility can set their own standards, policies, etc., related to delegation and supervision as long as it does not violate Chapter 157, board rules, or other applicable federal and state statutes and regulations. Although AAs most commonly work under an anesthesiologist physician, any physician may supervise and delegate to AAs; however, the standard of care must be met and the delegating physician remains responsible for the AA’s actions.

One difference between an AA and CRNA is the ability to order and prescribe dangerous and controlled substances to patients for anesthesia and anesthesia-related services. Under section 157.058, a CRNA pursuant to the physician’s order and in accordance with facility policies or bylaws may select, obtain, and administer those drugs appropriate to accomplish the order. The physician’s order for anesthesia or anesthesia-related services is not required to specify a drug, dose, or administration technique.

As previously stated, the Nursing Act describes what a CRNA can do in regard to anesthesia. However, the delegating physician or facility can limit what a CRNA is allowed to provide under a PAA or Standing Order, despite what may be allowed under Nursing Board rules and regulations.

While AAs are not allowed to select drugs, determine dose, or administration technique for anesthesia or anesthesia-related services without specification by the supervising physician through an order, they perform many of the other same key duties performed by CRNAs. These duties include conducting preoperative physical exams, administering medications, evaluating and responding to life-threatening situations, setting up external and internal monitors, and implementing general and site-specific anesthetic techniques.

Another area of concern relates to handing-off patient care from CRNAs to AAs. RNs have the authority to delegate certain nursing tasks to unlicensed individuals; however, a CRNA and AA do not have any specific delegation authority concerning anesthesia tasks. A physician has the authority to delegate the process of anesthesia-related patient care, including the transfer or hand-off of care from a CRNA to an AA through an order (standing or patient-specific) or protocol. A CRNA or AA cannot set-up or independently delegate a hand-off or step-down process.

While the Nursing Act places responsibility for patient hand-off on a CRNA, if the physician orders a hand-off process from CRNA to AA, and this is memorialized in orders, protocols, etc., then the CRNA does not have the authority to determine the AA is not competent. The reason is that the physician has already made the determination of competency under Chapter 157.001.

Because the CRNA’s authority also arises through the delegating physician, and is not independent of that physician, a CRNA cannot override a physician Order related to this hand-off scenario. If this hand-off became an issue, the CRNA would have a defense (absolute) because the physician has already determined the competency of the AA to accept this patient. 

The addition of a new supervising physician does not terminate any other supervision that is currently in place. Any current supervising physician relationship can be terminated using the Online Supervisions and Prescriptive Delegation Registration System.

There is no limitation to the number of PAs or APNs a physician may supervise. However, a physician may only delegate prescriptive authority to a maximum of seven PA's or APN's, or their full-time equivalent.  The only exception relates to supervision and prescriptive delegation to a medically underserved population or in facility based practice.

SB 406 eliminated site based prescriptive authority.  The law is silent regarding the practice location of the physician and its proximity to the practice site of the APRN or PA. That said, there has been no change in the law that requires that a physician must provide adequate supervision of delegates. In any given case, the distance between a physician’s primary practice and the practice site at which the physician’s delegates provide medical services may be an important factor in determining the quality of the physician’s supervision. 

All prescriptive delegation requires adequate supervision under the Medical Practice Act.  As such, a physician delegating to an APRN or PA must adequately supervise those individuals.  An individual physician may serve in both the supervising and delegating role and does not need to be physically present at all times to be considered to have adequate supervision.

It depends upon when the agreement was executed.  Note that there have been several changes to the law affecting this area in recent legislative sessions.  To understand how the law might apply to your situation, you may want to seek the advice of private legal counsel.

For a prescriptive authority agreement executed on or after September 1, 2019, the agreement must, at a minimum:

(1)  be in writing and reviewed, signed and dated by the parties to the agreement on an annual basis;

(2)  state the name, address, and all professional license numbers of the parties to the agreement;

(3)  state the nature of the practice, practice locations, or practice settings;

(4)  identify the types or categories of drugs or devices that may be prescribed or the types or categories of drugs or devices that may not be prescribed;

(5)  provide a general plan for addressing consultation and referral;

(6)  provide a plan for addressing patient emergencies;

(7)  state the general process for communication and the sharing of information related to the care and treatment of patients;

(8)  if alternate physician supervision is to be utilized, designate one or more alternate physicians; and

(9)  describe a prescriptive authority quality assurance and improvement plan and how it will be implemented. The plan must require chart reviews and periodic meetings.

The law does not provide a specific number or percentage of charts that must be reviewed.  Rather, the law provides that the number of charts to be reviewed is determined by the parties to the prescriptive authority agreement.  The number may vary from one practice setting to another.  Factors such as the length of time the APRN or PA has been in practice, the length of time the physician and APRN or PA have practiced together, whether the parties to the prescriptive authority agreement practice together in the same practice setting, and the complexity of patient care needs should be given consideration when making this determination. That said, there has been no change in the law that requires that a physician must provide adequate supervision of delegates. In any given case, the number or percentage of charts reviewed may be an important factor in determining the quality of the physician’s supervision. 

The prescriptive authority agreement designates who may serve as an alternate physician if alternate physician supervision will be utilized.  If an alternate physician(s) will participate in the quality assurance and improvement meetings with the APRN or PA, this information must be included in the prescriptive authority agreement.

Yes, potentially. Although physicians are not required to supervise CRNA’s for delegated tasks, they nonetheless remain subject to potential liability for violations of the standard of care by CRNAs, depending on federal and state statutes and regulations. The degree to which a physician is required to supervise a CRNA during the performance of a task in anesthesia services is left to the “physician’s professional judgment in light of other relevant federal and state laws, facility policies, medical staff bylaws, and ethical standards.” (Texas Attorney General Opinion No. JC-0117). However, physician supervision during the medical management of a patient while undergoing an anesthetic may require supervision dependent on federal and state statutes and regulations.

Additionally, Texas Attorney General Opinion No. KP-0353 found “In authorizing physicians to delegate the administration of anesthesia to CRNAs, the Legislature did not expressly limit the liability of the delegating physician. See TEX. OCC. CODE § 157.058; cf. id. § 157.004(c) (providing that in specified circumstances a physician who issues a standing delegation under chapter 203 generally “is not liable in connection with an act performed under that standing delegation order”). Thus, we cannot conclude that the liability of a physician delegating the administration of anesthesia to a CRNA is limited solely to the determination of competency. Questions of physician liability in any specific context are highly factual and not an appropriate determination for the opinion process. See Tex. Att’y Gen. Op. No. GA-0446 (2006) at 18 (“Questions of fact are not appropriate to the opinion process.”) (Page 4 with emphasis added.)

Regardless of the circumstances when supervision is or is not required, it is important to remember that the delegating physician must abide by all required federal and state statutes and regulations regarding delegation.  The physician retains responsibility of the medical management of the patient.  Therefore, the delegating physician must consider the delegatee’s education, training, and experience prior to delegating.  Additionally, delegation may be revoked by the delegating physician at any time.

The Texas Attorney General has issued three opinions on CRNA supervision.  The latest opinion found that although physician supervision of a CRNA is not required in Texas Occupations Code Sec. 157.058, other federal and state statutes and regulations may require physician supervision of a CRNA, a CRNA may not administer an anesthetic that is a controlled substance outside the presence of a physician, and the Legislature did not expressly limit the liability of the delegating physician.

Specifically, Texas Attorney General Opinion KP-0353 found “Section 157.058 of the Occupations Code does not, by itself, require a physician who properly delegates anesthesia-related tasks to a certified registered nurse anesthetist (“CRNA”) to supervise the performance of those acts.” (Page 5)

However, KP-0353 also found “…the language of chapter 157 is not the only relevant authority to consider in addressing the question of physician supervision over acts delegated to a CRNA.  Federal regulations limiting Medicare coverage and conditioning hospital participation in Medicare and Medicaid programs require physician supervision of a CRNA when administering anesthesia in certain circumstances. See, e.g., 42 C.F.R. §§ 416.42(b)(2), 482.52(a)(4), 485.639(c)(1)(v), (2) (requiring a CRNA to operate under a physician’s supervision when administering anesthesia in certain circumstances). Furthermore, a CRNA may not administer an anesthetic that is a controlled substance outside the presence of a physician. See TEX. HEALTH & SAFETY CODE §§ 481.002(1)(A) (defining “administer” to require agent to apply controlled substance in presence of physician), .071(a) (prohibiting physician from causing controlled substance to be administered under physician’s “direction and supervision” except for valid medical purpose and in course of medical practice). And a CRNA may not obtain an anesthetic that is a dangerous drug unless a physician has listed that CRNA as the physician’s designated agent. See id. §§ 483.001(4) (defining “designated agent”), .022(a) (requiring physician to name each designated agent in writing). (Page 3 with emphasis added.)

Finally, KP-0353 found “Whether and the extent to which physician supervision is required for an act delegated to a CRNA will depend on the specific act delegated, the type of facility in which the CRNA performs the act, and any relevant regulations of that facility.  And while section 157.058 authorizes a physician to delegate to a CRNA, a physician is never required to do so. If a physician is concerned about a CRNA’s ability to perform a delegated act or desires to limit the delegation, the physician retains the authority to refrain from delegating, to limit the delegation, or to supervise the delegation to whatever extent the physician determines necessary. In sum, the authority to delegate provided by section 157.058 of the Occupations Code does not eliminate the need to comply with all other applicable statutes, regulations, bylaws, ethical standards, and a physician’s own professional judgment. See TEX. OCC. CODE § 157.007 (“An act delegated by a physician under [chapter 157] must comply with other applicable laws.”). (Page 4 with emphasis added.)

The fee to apply for the NCT Registry is $60.00. There is no fee for the application for supervision. The fee for the NCT permit is separate.

No, neither the Medical Practice Act nor the Nursing Practice Act authorize independent practice by a CRNA.  Additionally, Texas Attorney General Opinion No. KP-0266 found “A certified registered nurse anesthetist does not possess independent authority to administer anesthesia without delegation by a physician.” (Page 5). Since the selection and administration of anesthesia is a medical act, CRNAs must be properly delegated this act by a physician.  A CRNA who administers anesthesia without proper delegation from a physician would be liable for the unlicensed practice of medicine.