No, the waiver process no longer exists.  A physician may only delegate prescriptive authority to more than seven full time equivalent APRNs and PAs in facility based hospital practices and in practices that serve medically underserved populations.  In all other settings and practice scenarios, the 1:7 FTE ratios applies.  

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.

APRNs and PAs are required to have delegated authority from a licensed physician in order to provide medical aspects of patient care. Historically, this delegation has occurred through a protocol or other written authorization. Rather than requiring multiple documents, delegation protocols can now be included in one document the prescriptive authority agreement. The prescriptive authority agreement need not describe the exact steps that an advanced practice registered nurse or physician assistant must take with respect to each specific condition, disease, or symptom, however.

A physician, advanced practice registered nurse, or physician assistant must have an active license to practice that is not suspended, delinquent, or otherwise subject to a disciplinary order that specifically prohibits the licensee from entering into a prescriptive authority agreement.    

Note that if a licensee’s authority to supervise, delegate, or prescribe devices is limited under a board order, the licensee may enter into a prescriptive authority agreement and practice under the agreement only to the extent permitted by the board order.

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. 

It depends upon when the agreement was executed.  For prescriptive authority agreements entered into prior to September 1, 2019, factors such as the type of delegate licensure and amount of time spent practicing under an agreement determined the required frequency and manner of meetings.  For such agreements, the amount of time an APRN or PA practiced under the delegated prescriptive authority of a physician under a prescriptive authority agreement includes the amount of time practiced under the delegated prescriptive authority of that same physician prior to November 1, 2013. 

For agreements entered on or after September 1, 2019, the length of time that a delegate has practiced in a supervised prescriptive authority arrangement with a physician is no longer relevant to how often parties to the prescriptive authority agreement must meet.  Such participants must meet at least on a monthly basis, no matter the length of time spent practicing together under a prescriptive authority agreement.

No. Periodic meetings are required, regardless of the distance between or locations at which the physician and delegate(s) practice.

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.

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.  

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.