Yes.  You are required to provide a copy of the prescriptive authority agreement to the board that requested it within three business days.  Although SB 406 did not specifically note that facility-based protocols must also be submitted within this time frame, each licensing board has the authority to request this information.  Failure to provide the requested information could result in disciplinary action against the professional license.

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. 

No.  Free standing clinics, centers or other medical practices that are owned or operated by or associated with a hospital or long term care facility that are not physically located within the hospital or long term care facility are not considered facility based practices.  Prescriptive authority agreements are required in these settings.

Although it is possible to use a prescriptive authority agreement in a hospital or long term care facility based practice, it is not required.  You may continue to practice under protocols in these settings.  APRNs and PAs must exercise prescriptive authority under one of these delegation mechanisms.

A physician may delegate prescriptive authority via facility based protocol at no more than one licensed hospital or no more than two long term care facilities.  

In a hospital facility based practice, the delegating physician may be the medical director, the chief of medical staff, the chair of the credentialing committee, a department chair, or a physician who consents to the request of the medical director or chief of the medical staff to delegate.  

In a long term care facility based practice, delegation is by the medical director.

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.)

APRNs or PAs may prescribe schedule II drugs in the following situations:

(1) in a hospital facility-based practice, in accordance with policies approved by the hospital's medical staff or a committee of the hospital's medical staff as provided by the hospital's bylaws to ensure patient safety and as part of care provided to a patient who:

(A) has been admitted to the hospital for an intended length of stay of 24 hours or greater; or

(B) is receiving services in the emergency department of the hospital; or

(2) as part of the plan of care for the treatment of a person who has executed a written certification of a terminal illness, has elected to receive hospice care, and is receiving hospice treatment from a qualified hospice provider.

Yes.  Nothing changed for delegation of prescriptive authority for controlled substances in schedules III through V.

Level I Services: Delivery of analgesics or anxiolytics by mouth, as prescribed for the patient on order of a physician, at a dose level low enough to allow the patient to remain ambulatory.

Level II Services: Delivery of analgesics or anxiolytics by mouth in dosages greater than allowed at Level I and tumescent anesthesia, as prescribed for the patient on order of a physician.

Level III Services: Delivery of analgesics or anxiolytics other than by mouth, including intravenously, intramuscularly, or rectally.

Level IV Services: Delivery of general anesthetics, including regional anesthetics and monitored anesthesia care.

1. A physician who provides level II-IV anesthesia services in an outpatient setting (including analgesics and anxiolytics).
2. A physician who performs a procedure for which level II-IV anesthesia services are provided in an outpatient setting (including analgesics and anxiolytics).

Physicians and anesthesiologists shall maintain current competency in ACLS, PALS, or a course approved by the board. In all settings under Chapter 173, at a minimum, at least two persons, including the surgeon or anesthesiologist, shall maintain current competency in basic life support.

OBA registration does not apply to physicians who practice in the following settings:

1. An outpatient setting in which only local anesthesia, peripheral nerve blocks, or both are used.
2. Any setting physically located outside the State of Texas.
3. A licensed hospital, including an outpatient facility of the hospital that is located apart from the hospital.
4. A licensed ambulatory surgical center.
5. A clinic located on land recognized as tribal land by the federal government and maintained or operated by a federally recognized Indian tribe or tribal organization as listed by the United States secretary of the interior under 25 U.S.C. (479-1) or as listed under a successor federal statute or regulation.
6. A facility maintained or operated by a state or governmental entity.
7. A clinic directly maintained or operated by the United States or by any of its departments, officers, or agencies.
8. An outpatient setting accredited by:
1. the Joint Commission on Accreditation of Healthcare Organizations relating to ambulatory surgical centers;
2. the American Association for the Accreditation of Ambulatory Surgery Facilities; or
3. the Accreditation Association for Ambulatory Health Care.
9. The performance of Mohs micrographic surgery.
10. Provide only level I services.

Note: physicians that provide only level I services, must still meet all other requirements under Chapter 173.