NOTICE: Please check the Texas Medical Board Web site for current updates on its rules and policies with respect to this issue.
Before proceeding we must inform you that we cannot provide legal advice to individual TMA members because Texas prohibits the "corporate practice of law" (Texas Government Code Ann. §81.101). In addition, the State Bar of Texas has ruled that corporate-employed attorneys may not provide legal services to customers of the corporation if a corporation receives fees that are, to any extent, compensation to the corporation for the attorney's legal services to the customers. To do so is a prohibited form of "fee-splitting" (Ethics Opinion 498, January 1995). The fact that TMA is a non-profit corporation does not seem to change the conclusion. However, we can provide general legal information about this topic. Because your facts may vary, you should contact your own retained counsel for true legal advice and representation.
This article provides general information regarding those acts that a physician may “delegate” to non-physicians. Generally, there is latitude given to a supervising physician in the physician’s delegation authority, but which acts may be delegated greatly depends upon the education and experience of the person to whom the acts are being delegated. However, a physician may not delegate the exercise of independent medical judgment or treatment. Furthermore, a physician must adequately supervise the activities of those acting under the physician’s supervision, and may not delegate professional medical responsibility or acts to a person if the physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.
A physician must take into account ethical considerations when delegating medical acts. It is imperative that patients not be misled into believing that a person performing the medical acts is a physician, if the person is not in fact a physician holding an unrestricted license issued by the State of Texas. Likewise, a physician should ensure no other misleading information be provided to the patient pertaining to the licensure or non-licensure of an individual performing the delegated medical acts. The TMA Board of Councilors issued an opinion on this issue:
Delegation of Medical Acts. A licensed physician who delegates medical acts to an unlicensed individual should assure that there are no misleading communications to patients that denote or connote licensure when such person is not licensed by the State of Texas.
The following information should provide an overview of the types of acts that may be delegated, and the individuals to whom such acts may be delegated. This information, however, is of a general nature and should not be used in place of retained legal counsel.
Top of page
General Delegation Clause
The Medical Practice Act (MPA) establishes the general parameters for physician delegation in Texas. The MPA authorizes physicians to delegate any medical act that a reasonable and prudent physician would find within the scope of sound medical judgment to delegate. Acts delegated “must comply with other applicable laws.”  The delegated acts must be performed by qualified persons, and each of the conditions specified at section 157.001 of the Texas Occupations Code must be met. The general delegation clause, containing the required conditions, is as follows:
§ 157.001. General Authority of Physician to Delegate
(a) A physician may delegate to a qualified and properly trained person acting under the physician's supervision any medical act that a reasonable and prudent physician would find within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician:
(1) the act:
(A) can be properly and safely performed by the person to whom the medical act is delegated;
(B) is performed in its customary manner; and
(C) is not in violation of any other statute; and
(2) the person to whom the delegation is made does not represent to the public that the person is authorized to practice medicine.
(b) The delegating physician remains responsible for the medical acts of the person performing the delegated medical acts.
(c) The board may determine whether:
(1) an act constitutes the practice of medicine, not inconsistent with this chapter; and
(2) a medical act may be properly or safely delegated by physicians.
The person to whom a physician delegates the performance of a medical act is generally not considered to be practicing medicine without a license by performing the medical act. The TMB may determine whether “an act constitutes the practice of medicine” and whether a medical act may be “properly or safely delegated by physicians.”  A physician shall be permitted to exercise his or her professional judgment to decide which medical acts may be safely delegated, and TMB will not adopt rules containing global prohibitions or restrictions on the delegation of medical acts, except as absolutely necessary. Though physicians may delegate, they “remain responsible for the medical acts” delegated.
Traditionally, the scope of what a physician may delegate to a non-physician, be that person an RN, LVN, PA, or medical assistant, is governed by this general rule, and regardless of that person’s title, the law specifies that the person to whom the act is delegated must be “qualified and properly trained.” The individual’s title merely provides some indication that the person has met some set of qualifications and training. The physician must nevertheless determine if the skill set underlying those certifications or licenses makes the person qualified and trained to perform the delegated medical activity. Persons without licenses or certifications may have the qualifications and training for some medical acts.
Thus, a physician may delegate to non-physicians the tasks of performing injections, taking blood pressure, checking temperature, or performing other tasks that do not involve the exercise of independent medical judgment, as long as the physician is satisfied that the person is qualified and adequately trained. Those persons need not be registered nurses when they are employed in a physician’s private medical office, but must be qualified and trained to perform the medical act.
Consider the following three scenarios and the factors the Texas Medical Board (TMB) considered in determining that medical care was improperly delegated.
The TMB sanctioned Dr. K for improperly delegating authority to individuals he knew were unqualified by training, experience, or licensure to perform the responsibilities or acts. Dr. K left pre-signed, blank prescription pads in his office and allowed two advance practice nurses (APN) to fill-out the pre-signed prescription pads. Neither APN had prescriptive authority as required by The Texas State Board of Nurse Examiners. Further, evidence of his improper delegation included his lack of knowledge about the operating policies and procedures or the day-to-day operations of the clinics he was supervising.
The TMB sanctioned Dr. A for improperly delegating duties to her medical assistant. While Dr. A was not in the office, she allowed her medical assistant to take vital signs and perform a preliminary evaluation of patients seeking refills on their medications, including controlled substances and dangerous drugs. If the medical assistant determined a patient was eligible for a refill, she would seek permission from Dr. A. The medical assistant had no licensure or certification that supported the delegation of responsibility to make limited evaluations of patients in regard to renewal of their prescription. Further, Dr. A did not have any standing orders which would have given the medical assistant protocols for the duties of taking vital signs, making observations, and making evaluations of patients in Dr. A’s absence.
The TMB sanctioned Dr. J for improperly delegating medical care to a non-licensed medical doctor. Dr. J employed a staff member who was licensed as a physician in Mexico, but did not have a Texas license to practice as a physician or any other practitioner. Despite this, Dr. J referred to him as his physician assistant. Dr. J allowed the unlicensed individual to examine patients while Dr. J was not in the office. Dr. J had not been in the office for several months and consulted with the unlicensed individual through telephone conversations. The TMB found that Dr. J delegated professional medical responsibility or acts to a person whom he knew or had reason to know was not qualified by training, experience, or licensure to perform the responsibilities or acts.
Top of page
Delegation to Advanced Practice Nurses Generally
The scope of an advanced practice nurse (APN), also known as a nurse practitioner, is not specifically defined, but rather depends on the nurse’s education and the delegation of duties by the supervising physician. There is direction in the Texas Occupations Code pertaining to the delegation of prescriptive authority to APNs. There appears to be latitude given to a supervising physician in his delegation authority.
The Texas Nursing Practice Act regulates nursing and defines an APN as a registered nurse who is approved by the Texas Board of Nurse Examiners to practice as an advanced practice nurse after completing an advanced educational program. The Texas Medical Practice Act regulating physicians adopts this definition. Standards governing APNs are found in title 22 of the Texas Administrative Code.
An APN “acts independently and/or in collaboration with other health care professionals in the delivery of health care services.” 22 TEX. ADMIN. CODE §221.1(3).
The Nursing Practice Act provides some guidance on the scope of duties encompassed in the definition of “professional nursing,” but specifically excludes “diagnosis.” Both the Medical Practice Act and the Nursing Practice Act bar nurses from making medical diagnoses. An APN can make limited diagnoses, but only under a physician’s delegation of prescriptive authority, and pursuant to a physician’s supervision. The delegation of prescriptive authority to APNs and PAs is discussed later in this document.
Top of page
Delegation to a Midwife Generally
Midwifery is not the practice of medicine. It is regulated by the Texas Midwifery Act. Childbirth is a natural process of the human body and not a disease. Nevertheless, a physician can delegate acts to a midwife pursuant to the general delegation authority provided by the general delegation clause. Furthermore, the legislature specifically provides delegation authority for eye prophylaxis. A physician may delegate to a midwife the possession and administration of eye prophylaxis for the prevention of ophthalmia neonatorum. A physician who issues a standing delegation order to a midwife is not liable in connection with an act performed under that standing delegation order if the midwife provides proof of licensure under the Texas Midwifery Act before the order is issued.
Top of page
Delegation to Pharmacists Generally
A physician may delegate the performance of specific acts of drug therapy management to a properly trained and qualified pharmacist acting under adequate physician supervision. “Drug therapy management” is the performance of specific acts by pharmacists as authorized by a physician through written protocol, but does not include the selection of drug products not prescribed by the physician unless the drug product is named in the physician initiated protocol or physician initiated record of deviation. Drug therapy management may include: (1) collecting and reviewing patient drug use histories; (2) ordering or performing routine drug therapy related patient assessment procedures including temperature, pulse, and respiration; (3) ordering drug therapy related laboratory tests; (4) implementing or modifying drug therapy, including the authority to sign a prescription drug order for dangerous drugs as provided in §157.101(b-1) of the Act, following diagnosis, initial patient assessment, and ordering of drug therapy by a physician, as detailed in the protocol (and pursuant to certain requirements and limitations ); (5) generically equivalent drug selection if the physician’s signature does not clearly indicate that the prescription must be dispensed as written; or (6) “any other drug therapy related act delegated by a physician.”
The physician may make the authorization through a physician’s order, standing medical order, standing delegation order, or other order or protocol as defined by TMB rule. However, the order or protocol may not permit the delegation of medical diagnosis.
Certain restrictions to the delegation of drug therapy apply. The physician is responsible for the formulation of the order, must have established a physician-patient relationship with the patient, must be able to be physically present daily to provide medical care and supervision, must receive a periodic status report on each patient, and must be available through direct telecommunication for consultation, assistance, and direction.
Furthermore, written protocols shall be reviewed, and modified if necessary, by the physician at least annually.
Immunizations or Vaccinations
Physicians may also delegate the administration of immunizations and vaccinations to a properly qualified and trained pharmacist, acting under adequate supervision. The physician may make this delegation through the physician’s order, standing medical order, standing delegation order, or other order or protocol. This delegation does not include the selection of drug products not prescribed by the physician, unless the product is named in the physician initiated protocol.
The physician must adequately supervise the pharmacist. For proper supervision, the physician:
(1) is responsible for the formulation or approval of the physician’s order, standing medical order, standing delegation order, or other order or written protocol and periodically reviews the order or protocol and the services provided to the patient under the order or protocol on a schedule defined in the written protocol;
(2) has established a physician-patient relationship with each patient under 14 years of age and referred the patient to the pharmacist;
(3) is geographically located so as to be easily accessible to the pharmacist administering the immunization or vaccination;
(4)receives, on a schedule defined in the written protocol, a periodic status report on the patient, including any problem or complication encountered; and
(5) is available through direct telecommunication for consultation, assistance, and direction.
Written protocols shall be reviewed, and modified if necessary, by the physician at least annually. The physician must also, pursuant to protocol, review documentation of the pharmacist’s administration of immunizations and vaccinations.
Top of page
Delegation to Physician Assistants Generally
The scope of physician assistant (PA) practice was historically governed by the general delegation clause quoted above. In 1993, the Texas Legislature enacted the “Physician Assistant Licensing Act.” The Act does several things of note: (a) requires licensure of PAs, (b) creates the Texas Physician Assistant Board (TPAB) as an advisory board to the TMB, and (c) clarifies the scope of PA practice and responsibility therefore. As to the latter, the Act states that the practice of a physician assistant includes providing medical services delegated by a supervising physician that are within the education, training and experience of the physician assistant. It also provides a non-exclusive list of things a PA can do, as long as they are (1) within the education, training and experience of the PA, and (2) are delegated by the supervising physician. The portion of that section, providing the nonexclusive list of services a PA can provide, is as follows:
(b) Medical services provided by a physician assistant may include:
(1) obtaining patient histories and performing physical examinations;
(2) ordering or performing diagnostic and therapeutic procedures;
(3) formulating a working diagnosis;
(4) developing and implementing a treatment plan;
(5) monitoring the effectiveness of therapeutic interventions;
(6) assisting at surgery;
(7) offering counseling and education to meet patient needs;
(8) requesting, receiving, and signing for the receipt of pharmaceutical sample prescription medications and distributing the samples to patients in a specific practice setting in which the physician assistant is authorized to prescribe pharmaceutical medications and sign prescription drug orders as provided by Section 157.052, 157.053, 157.054, 157.0541, 157.0542 or as otherwise authorized by physician assistant board rule;
(9) signing or completing a prescription as provided by Subchapter B, Chapter 157; and
(10) making appropriate referrals.
PAs may perform these listed activities in any place authorized by a supervising physician, including a clinic, hospital, ambulatory surgical center, patient home, nursing home, or other institutional setting.
A supervising physician retains legal responsibility for a PAs patient care activities. PAs employed by health care facilities must also be supervised by physicians, and the legal liability for the acts of such PAs is shared between the supervising physician and the employing health care facility. As for the supervision requirement, the Act provides that the supervising physician oversees the activities of, and accepts responsibility for, medical services provided by the PA. The supervision by the supervising physician must be “continuous” but does not require the physical presence of the supervising physician at the place where PA services are performed while the services are being performed; however, the supervising physician and PA must be able to “easily be in contact with one another by radio, telephone, or another telecommunication device.” The PA is the agent of the supervising physician for any medical services that are delegated by that physician and that: (1) are within the PA’s scope of practice and (2) are delineated by protocols, practice guidelines, or practice directives established by the supervising physician.
Texas law does not give guidance on the practice of billing for a PA’s services. The ability of physicians to bill for services rendered by a PA is governed by rules adopted by the TMB. TMB rules used to prohibit separate billing for the services of a PA (former 22 TAC §185.10(1)) on grounds that the PA’s services were “part of the global services provided by the supervising physician,” but that rule has been changed. Now, the TMB rules provide that the “physician assistant may not independently bill patients for the services provided by the physician assistant except where provided by law.” Medicare may be one area in which this is allowable. However, Medicare will only make payment to the actual employer of a physician assistant.
Physicians wishing to employ PAs must notify the TMB of the physician’s intent to supervise them. A supervising physician must submit a statement to the TMB and TPAB that the physician will supervise the PA according to the rules adopted by the board and retain professional and legal responsibility for the care rendered by the PA. Fortunately, the TMB and TPAB share the same staff and utilize a single form for notice. To obtain the form, visit:
For more information, including a copy of the rules pertaining to PAs, visit: http://www.tmb.state.tx.us/rules/pa/parandr.php.
Top of page
Delegation to Medical Assistants Generally
Most medical assistants are persons who have completed a course of training and, upon graduation, given a certificate or diploma declaring them to be a Medical Assistant. Most MA training programs are conducted by junior colleges and private, proprietary trade schools, so the competency of persons calling themselves MAs may vary widely. Some MAs are persons who have worked for physicians for a long time and have adopted that title to identify themselves.
The term “medical assistant” has no real legal significance. MAs are not licensed, certified, or registered by any agency of the State of Texas, nor are they recognized under federal Medicare or Medicaid laws as a species of “provider.” There is no reference to MAs in the Medical Practice Act or any other Texas Statute. Thus, there is no specific legal regulation of MAs.
What can a Medical Assistant do? Since there is no specific legal regulation of MAs, one has to look to the general delegation clause in the Medical Practice Act, cited above. The scope of MA “practice” is governed by this general provision, meaning that the MA's education and experience are matters that the supervising physician must take into consideration when giving them direction. The supervising physician may delegate tasks to the MA when he or she is satisfied that they are “qualified and properly trained” and the task delegated can be “properly and safely performed.”
In addition, MAs have banded together to form the American Association of Medical Assistants which has a Texas chapter. They have a certification program, which may present evidence of an MA's qualifications. In any event, a physician should review an MA’s course curriculum to satisfy himself or herself that the MA is capable and qualified to safely perform any tasks contemplated.
Billing for Medical Assistants
The TMB has adopted no specific rules addressing the ability of physicians to bill for services rendered by an MA. It is probably the case that most insurers regard the MA's work as being part of the overall service rendered by the physician and thus not separately billable. One area of allowable billings may be in the Texas Medicaid Program. A service is payable by Medicaid if it is performed by a physician personally, or by a qualified person working under the personal supervision of the billing physician. The term “personal supervision” means that the physician must be in the building or the office or facility when and where the service is provided. So long as the MA is under the personal supervision of the billing physician, it would seem to be reimbursable. For additional information, contact Texas Medicaid and Healthcare Partnership. It seems clear that independent billing by MA’s is not permitted. Medicare reimbursement for services performed by employees, including MA’s, does require direct supervision by the physician and must meet all the additional “incident to” billing requirements. There must be direct personal supervision by the physician as an integral part of the physician's personal in-office service and the physician must be physically present in the same office suite and be immediately available to render assistance if that becomes necessary. Further, the physician must have initially seen the patient. The complete Medicare policy for “incident to” services may be found in “Incident To” Services Manual, Published March 2009. This manual may be found at www.trailblazerhealth.com.
Top of page
Use of Non-licensed Physicians in the Medical Setting
TMA often receives letters relating to the use of non-licensed physicians in medical settings in Texas. The question most often asked is whether a non-licensed physician can be employed as a “Physician Assistant” or “Medical Assistant.” Usually this occurs where the non-licensed physician is foreign trained and, for various reasons, is having difficulty obtaining a Texas license. Since a person who would call herself a “Physician Assistant” must be licensed as such by the TMB, employment as a PA is not possible. Employment as an MA might be possible under the general delegation clause set out in the beginning of this letter, but there are problems.
Historically, the TMB has viewed with disapproval situations wherein non-licensed physicians, in Texas on a permanent basis, provide medical services under delegation of a Texas licensed physician. The concerns expressed by the TMB are numerous. Among those is the fact that a person who has an MD or DO degree will typically want to exercise independent medical judgment. Such exercise could easily lead to a violation of the Medical Practice Act. Further, the Board considers its mandate from the Texas legislature to focus on patient safety and well-being. Therefore, they often view a situation not from the viewpoint of a physician but from the viewpoint of the patient. A person who is not licensed in Texas but yet has an MD or DO degree may well be introduced as “doctor.” From the viewpoint of the patient, they would in all likelihood assume that the person is a licensed physician and correspondingly be misled as to the care that they are receiving. The TMB has disciplined physicians for improper delegation to unlicensed MDs or DOs as evidenced by Case 3 presented earlier in this paper.
Thus, where a Texas licensed physician is employing or utilizing a non-licensed physician in rendering medical care, the TMB would have a heightened review and concern. This behavior, upon appropriate proof, is subject to criminal sanctions ranging from misdemeanors to felonies in addition to any administrative sanctions that may be brought by the TMB.
When utilizing non-licensed doctors under the delegated authority of a Texas licensed physician, one should review that relationship carefully with an attorney.
Top of page
General Delegation of Administration of Dangerous Drugs
A physician may delegate the act of administering or providing dangerous drugs in the physician’s office, as ordered by the physician and under the physician’s supervision. The drugs must be used to meet the immediate needs of the physician’s patients. The physician may make this delegation to “any qualified and properly trained person acting under the physician’s supervision.”
Delegation for the administration of dangerous drugs may be through physician’s orders, standing medical orders, standing delegation orders, or other orders as defined by the TMB.
Top of page
Delegation of Prescriptive Authority to Physician Assistants and Advanced Practice Nurses
Sections 157.051 - 157.060 of the Texas Occupations Code provide some more specific direction regarding delegation to APNs and PAs, predominantly regarding delegation of prescriptive authority. Furthermore, TMB rules provide guidelines for the implementation of Sections 157.051 - 157.060 of the Texas Occupations Code. Neither the Medical Practice Act nor the TMB rules authorize the exercise of independent medical judgment by PAs or APNs, and the delegating physician remains responsible to the board and to his or her patients for acts performed under the physician’s delegated authority.
A physician must document any delegation of prescriptive authority to a PA or APN by a protocol, and must maintain a permanent record of all protocols the physician has signed. The record must show to whom the delegation was made and the dates of the original delegation, each annual review, and termination. If the APN or PA is located at a site other than the site where the physician spends the majority of the physician’s time, even more stringent documentation of physician supervision is required. For example, documentation must include a permanent record of the names or identification numbers of patients discussed during daily status reports, the times when the physician is on site, and a summary of the physician’s activities while on site. Furthermore, the summary should also include a description of the quality assurance activities conducted and the names of any patients seen or whose case histories were reviewed with the PA or APN. The supervising physician must sign the documentation at the conclusion of each site visit. Finally, delegating physicians must register with the board the name and license number of the PA or APN to whom the delegation is made.
The TMB may waive or modify any of the site or supervision requirements for a physician to delegate the carrying out or signing of prescription drug orders to an APN or PA at facilities serving medically underserved populations, at physician primary and alternate practice sites, and at facility based practice sites. For details of how to obtain a waiver and the requirements for waiver, please visit the TMB website and view rule 193.6(i).
Prescription Drug Orders
A physician may delegate the carrying out or signing of a prescription drug order for a controlled substance only if: (1) the prescription is for a controlled substance listed in Schedule III, IV, or V as established by the commissioner of public health under Chapter 481 of the Health and Safety Code; (2) the prescription, including a refill of the prescription, is for a period not to exceed 90 days; (3) with regard to the refill of a prescription, the refill is authorized after consultation with the delegating physician and the consultation is noted in the patient’s chart; and (4) with regard to a prescription for a child less than two years of age, the prescription is made after consultation with the delegating physician and the consultation is noted in the patient’s chart.
Further, a physician who delegates the carrying out or signing of a prescription drug order is required to register the name and license number of the PA or APN to whom such a delegation is made.
Prescribing at Sites Serving Certain Medically Underserved Populations
At a site serving a medically underserved population, a physician licensed by the board may delegate to an APN or PA the act of administering, providing, or carrying out or signing a prescription drug order, as authorized by the physician through a physician’s order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. The APN or PA must act under adequate physician supervision. The providing and carrying out or signing a prescription drug order under this subdivision is limited to dangerous drugs and controlled substances (schedules III-V). The prescription, including a prescription for a refill, must not exceed a period of 90 days. Furthermore, a refill may be authorized only after consultation with the delegating physician and noting the consultation in the patient’s chart, and a prescription for a child less than two years of age must also be made after consultation with the delegating physician and noting the consultation in the chart.
The TMB rules provide guidance on what is considered adequate supervision. The rules provide that physician supervision will be adequate if a delegating physician: (1) receives a daily status report from the APN or PA on any complications not covered by a protocol; (2) visits the clinic in person at least once every 10 business days during regular business hours when the APN or PA is on site, in order to observe and provide medical direction and consultation (including reviewing case histories, personally diagnosing or treating patients, and verifying that care is provided in accordance with a quality assurance plan on file which includes a random review and countersignature of at least 10% of the patient charts by the physician); (3) is available by telephone or direct telecommunication for consultation, emergencies or referrals; and (4) is responsible for the formulation and approval of the physician, medical, or standing delegation orders.
The number of facilities a physician may supervise is limited. A physician may not supervise more than three clinics serving medically underserved populations without approval of the board, or any number of clinics with combined regular business hours exceeding 150 concurrent hours per week without board approval.
Prescribing at Physician Primary Practice Sites
At a physician’s primary practice site, a physician licensed by the board may delegate to a PA or an APN (acting under adequate physician supervision) the act of administering, providing, or carrying out or signing a prescription drug order as authorized through a physician’s order, a standing medical order, a standing delegation order, or another order or protocol as defined by the TMB. This delegation is also limited to dangerous drugs and controlled substances (Schedules III-IV), and must be pursuant to adequate physician supervision. A primary practice site includes the practice location at which the physician spends the majority of the physician’s time, a licensed hospital or facility at which both the physician and the PA or APN are authorized to practice, a clinic operated by or for a public school district to provide care to students, the residence of an established patient, another location where the physician is physically present with the PA or APN, or a location where the PA or APN practices onsite with the physician more than 50 percent of the time.
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 particular APN or PA.
The rules require a physician to provide “continuous supervision”; however, this does not require the constant physical presence of the physician. Presumably, this indicates the physician should be readily accessible through direct telecommunication.
A physician’s authority to delegate the carrying out or signing of a prescription drug order is limited to four PAs or APNs or their full-time equivalent practicing at the physician’s primary practice site or an alternate practice site, unless a waiver is granted. A physician’s authority to delegate in this regard is also limited to the patients with whom the physician has established or will establish a physician-patient relationship, but the physician is not required to see the patient within a specific period.
Prescribing at Facility-Based Practice Sites
In general, a physician may delegate to one or more PAs or APNs, (again, they must be acting under adequate physician supervision) whose practice is facility based, the administration or provision of a drug and the carrying out or signing of a prescription drug order, limited to dangerous drugs and controlled substances Schedules III-V. A facility based practice site includes a licensed hospital or a licensed long-term care facility. The physician must be the medical director or chief of medical staff at the facility in which the PA or APN practices, the chair of the facility’s credentialing committee, a department chair of a facility department, 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 a prescription drug order at the facility.
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. The supervision may vary with the education and experience of the particular APN or PA. A physician must provide continuous supervision, but the constant physical presence of the physician is not required.
Prescribing at Physician Alternate Practice Sites
At an alternate site, a physician licensed by the board may delegate to an APN or PA, acting under adequate physician supervision, the act of administering, providing, or carrying out or signing a prescription drug order, limited to dangerous drugs and controlled substances Schedules III-V, as authorized through a physician’s order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. An “alternate site” is a practice site located within 75 miles of the delegating physician’s residence or primary practice site, and where services similar to the services provided at the delegating physician’s primary practice site are provided.
The delegating physician must be on-site with the APN or PA at least 10 percent of the site’s hours of operation each month that the PA or APN is acting with delegated prescriptive authority. While on-site, the physician must be available to see, diagnose, treat, and provide care to those patients for services provided or to be provided by the AP or APN to whom the physician has delegated prescriptive authority. The delegating physician must randomly review at least 10 percent of the medical charts for each APN or PA at the site, and must be available through direct telecommunication for consultation, patient referral, or assistance with a medical emergency. The physician may not be prohibited by contract from seeing, diagnosing, or treating a patient for services to be provided by the APN or PA under delegated prescriptive authority.
Generally, without a waiver from the TMB, the combined number of APNs and PAs to whom a physician may delegate at a primary or alternate practice site may not exceed four APNs or PAs or the full time equivalent of four PAs or APNs. If the TMB determines the types of services provided at an “alternate site” are limited in nature and duration (often the type of services offered at retail health clinics) and patient health care will not be adversely affected, the TMB may allow for fewer restrictions. The TMB may modify or waive the mileage requirement, some supervision requirements, and raise the limit on the number of PAs and APNs to whom a physician may delegate to as many as a 6 to 1 ratio.
Top of page
Delegation Regarding Certain Obstetrical Services
A physician may delegate the act of administering or providing controlled substances during intrapartum and immediate postpartum care. This delegation may only be for a term not to exceed 48 hours.  The delegation may be to a PA offering obstetrical services and certified by the board as specializing in obstetrics or to an APN recognized by the Texas Board of Nursing as a nurse midwife. This delegation must be under a physician’s order, medical order, standing delegation order, or protocol that requires adequate and documented availability for access to medical care. The physician may not delegate the use of a prescription sticker or the use of an official prescription form.
The authority of a physician to delegate under this section is also limited to four nurse midwives or PAs or their full-time equivalents, and must be at the designated facility at which the nurse midwife or PA provides care.
Certain other restrictions apply to this provision, including requirements that limit the number of PAs or APNs to be supervised to four (or full-time equivalent) and the labeling and storage of the controlled substance. Furthermore, the physician’s orders or delegation orders must provide for reporting or monitoring of a patient’s progress and provision of controlled substances by the nurse midwife or PA.
Top of page
Standing Delegation Orders
The TMB allows for standing delegation orders, and provides specific examples of what may be delegated under such standing orders. However, this rule does not apply to patient care delivered by PAs or APNs, relating to delegation of the carrying out or signing of prescription drug orders, as discussed above. “Providing the authorizing physician is satisfied as to the ability and competence of those for whom the physician is assuming responsibility, and with due regard for the safety of the patient and in keeping with sound medical practice, standing delegation orders may be authorized for the performance of acts and duties which do not require the exercise of independent medical judgment….” These delegations can include potential diagnosis by an APN butonly under prescriptive delegation. For your information, the complete text of Rule 193.4 is as follows:
Providing the authorizing physician is satisfied as to the ability and competence of those for whom the physician is assuming responsibility, and with due regard for the safety of the patient and in keeping with sound medical practice, standing delegation orders may be authorized for the performance of acts and duties which do not require the exercise of independent medical judgment. Limitations on the physician's use of standing delegation orders which are stated in this section shall not apply to patient care delivered by physician assistants or advanced practice nurses, as authorized by the Medical Practice Act, Texas Occupations Code Annotated, §§157.051 - 157.060 or §193.6 of this title. When care is delivered under other circumstances, standing delegation orders may include authority to undertake the following as listed in paragraphs (1) - (8) of this section:
(1) the taking of personal and medical history;
(2) the performance of appropriate physical examination and the recording of physical findings;
(3) the ordering of tests appropriate to the services provided under such orders, such as tuberculin tests, skin tests, VD tests, VDRL tests, gram stains, pap smears, and serological tests;
(4) the administration or providing of drugs ordered by direct personal or voice communication by the authorizing physician who shall assume responsibility for the patient's welfare, providing such administration or provision of drugs shall be in compliance with other state or federal laws and providing further that pre-signed prescriptions shall be utilized by the authorizing physician only under the following conditions shown in subparagraphs (A) - (D) of this paragraph.
(A) The prescription shall be prepared in full compliance with the Texas Health and Safety Code, §483.001(13) except for the inclusion of the name of the patient and the date of issuance.
(B) The prescription shall be for one of the following classes or types of drugs:
(i) oral contraceptives;
(ii) diaphragms and contraceptive creams and jellies;
(iii) topical anti-infectives for vaginal use;
(iv) oral anti-parasitic drugs for treatment of pinworms;
(v) topical anti-parasitic drugs; or
(vi) antibiotic drugs for treatment of venereal disease.
(C) The prescriptions may not be issued for any controlled substance.
(D) The providing of the drugs shall be in compliance with the Texas Pharmacy Act and rules adopted by the Texas State Board of Pharmacy.
(5) the administration of immunization vaccines providing the recipient is free of any condition for which the immunization is contraindicated;
(6) the providing of information regarding hygiene and the administration or providing of medications for health problems resulting from a lack of hygiene, including the institution of treatment for conditions such as scabies, ringworm, pinworm, head lice, diaper rash and other minor skin disorders, provided the administration or providing of drugs adheres to paragraph (4) of this section;
(7) the provision of services and the administration of therapy by public health departments as officially prescribed by the Department of State Health Services for the prevention or treatment of specific communicable diseases or health conditions for which the Department of State Health Services is responsible for control under state law;
(8) the issuance of medications which do not require a prescription (over the counter medications) for the symptomatic relief of minor illnesses provided that such medications are packaged and labeled in compliance with state and federal laws and regulations.
Again, a physician may not delegate an act authorizing the exercise of independent medical judgment. Any physician authorizing standing delegation orders or standing medical orders which authorize the exercise of independent medical judgment or treatment shall be subject to having his or her license to practice medicine in Texas revoked or suspended.
Top of page
Physician Assistants and Mental Health Facilities
As a general rule, a person may not be admitted for voluntary inpatient services unless:
1) a proper request for voluntary inpatient services is filed, and
2) the facility administrator or the administrator’s authorized, qualified designee determines:
a) from a preliminary examination that the person has symptoms of mental illness and will benefit from the inpatient services;
b) that the person has been informed of the person’s rights as a voluntary patient; and
c) that the admission was voluntarily agreed to.
The question has been raised: Can a PA perform the evaluation and/or sign the admitting order as a “delegated act?”
A voluntary patient may not be formally accepted for a treatment facility unless the facility has a physician’s order admitting the prospective patient and the order is signed by the physician.
In 2003, the Texas Attorney General’s office expanded on the issue. The Attorney General opined that a physician must personally perform the examination required for admission and may not delegate the duty to a non-physician pursuant to the Medical Practice Act.
Thus, to formally accept and admit a patient, a PA may not perform the psychiatric evaluation and/or medical examination required for admission, nor may a PA execute the actual written order for hospital admission. A physician must perform both tasks. However, the evaluation and examination may be performed in-person or through telecommunication.
Top of page
Physical Therapy in a Physician’s Office
An often-asked question concerns a physician’s employees performing “physical therapy” within the confines of a physician’s office, and whether a physician (or the employee) who does so violates Chapter 453 of the Occupations Code (formerly, the Physical Therapy Licensure Act). The Texas statute prohibits any person from practicing or representing himself as being able to practice physical therapy unless licensed by the Texas Board of Physical Therapy Examiners. However, the statute also specifically states that this rule “does not restrict the holder of a license issued by another state agency from performing health care services within the scope of the applicable licensing act…”
Physicians, who are licensed by the TMB, fit this exception. The Texas Attorney General’s Office reached essentially the same opinion in 1986. The Attorney General opined that a doctor may perform medical acts that come within the definition of physical therapy. Further, the Attorney General opined that if the requirements of the above cited provision of the Medical Practice Act are met, then a person who is not a licensed physical therapist, but who is acting under a physician’s supervision, may perform medical acts that come within the definition of physical therapy.
However, the licensing statute for physical therapists has changed since that time. It does not apply to physicians as long as physicians do not represent (advertise, etc.) to others that they are physical therapists or that they perform “physical therapy.” It is also a violation of the PT licensing statute to advertise the ability to perform physical therapy unless the person actually providing the physical therapy is licensed as a physical therapist. In addition, the PT Board provides licenses to and regulates “physical therapy facilities” (any place where the practice of physical therapy takes place). It is perhaps for this reason that some physicians have “physical medicine and rehabilitation clinics” and other permutations that do not advertise “physical therapy.” A physical therapist, employed by a physician, was disciplined by the PT Board because of failure to comply with PT Board rules regarding charting, patient assessment and other matters. Physicians who employ licensed physical therapists should consult legal counsel regarding these matters.
Top of page
Delegation of Administration of Anesthesia
A physician in a licensed hospital or ambulatory surgical center may delegate to a certified registered nurse anesthetist (CRNA) the “ordering of drugs and devices necessary” to administer an anesthesia or anesthesia related service ordered by a physician. The physician’s order for anesthesia or anesthesia related services does not have to be drug-, dose-, or administration-technique specific. The CRNA may select, obtain, and administer the drugs and medical devices necessary to accomplish the physician’s order pursuant to (1) the physician’s order, and (2) facility policies or bylaws.
In opinion JC-0117, the Texas Attorney General held that the Board of Nurse Examiners may regulate the selection and administration of anesthesia and the maintenance of anesthetized patients by CRNAs where anesthesia related tasks have been delegated by a physician. The Medical Practice Act does not require that a physician directly supervise the CRNA’s selection and administration of the anesthesia. Rather, the extent of physician involvement is left to the physician’s professional judgment in light of other federal and state laws, facility policies, medical staff bylaws, and ethical standards.
Top of page
Pronouncement of Death
An RN or PA may determine and pronounce a person dead in situations, other than those involving artificial means of support, if permitted by written policies of a licensed health care facility, institution, or entity providing services to that person. The availability of others to pronounce death in other than brain death situations should not result in physicians routinely delegating this task.
TMB rules allow physicians to receive information from Texas licensed vocational nurses through electronic communication, such as telephone, fax, or email, for the purpose of making a pronouncement of death. In order to make a pronouncement of death through electronic communication, a physician must receive, at a minimum, information regarding absence of palpable pulse, discernible blood pressure, respiration, and heartbeat for a minimum of 60 seconds. If a physician makes a pronouncement of death based on this information received through electronic communication, the physician retains responsibility for all acts related to this pronouncement.
Top of page
Responsibility for Delegated Acts
In any event, regardless of whether one contemplates delegating acts to non-physicians under either the general delegation clause or one of the more context-specific delegation clauses, the general principle remains that a physician is legally responsible for the acts delegated. Furthermore, “any physician authorizing standing delegation orders or standing medical orders which authorize the exercise of independent medical judgment or treatment shall be subject to having his or her license to practice medicine in the State of Texas revoked or suspended.” Furthermore, a physician commits a prohibited practice if the physician fails to supervise adequately the activities of those acting under the supervision of the physician, or if the physician delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.
A physician is not liable for the acts of a physician assistant or advanced nurse practitioner, however, solely on the basis of having signed an order, a standing medical order, a standing delegation order, or other order or protocol authorizing a physician assistant or advanced nurse practitioner to carry out or sign prescription drug orders unless the physician has reason to know such persons lack the competency to perform the act or acts. Furthermore, a physician who issues a standing delegation order to a licensed midwife is not liable in connection with an act performed under that standing delegation order if the midwife provides proof of licensure before the order is issued.
Top of page
NOTICE: This information is provided as a commentary on legal issues and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship. This is not a substitute for the advice of an attorney. The Office of the General Counsel of the Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. Although TMA has attempted to present materials that are accurate and useful, some material may be outdated and TMA shall not be liable to anyone for any inaccuracy, error or omission, regardless of cause, or for any damages resulting therefrom. Any legal forms are only provided for the use of physicians in consultation with their attorneys. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.
 22 TEX. ADMIN. CODE 193.5 (Neither the Act, §§157.051-157.060, nor these rules authorize the exercise of independent medical judgment by physician assistants or advanced practice nurses, and the delegating physician remains responsible to the board and to his or her patients for acts performed under the physician’s delegated authority.).
 TEX. OCC. CODE §164.053(a)(8)-(9).
 TEX. OCC. CODE §157.001.
 TEX. OCC. CODE § 157.007.
 TEX. OCC. CODE § 157.005.
 TEX. OCC. CODE § 157.001.
 TEX. OCC. CODE § 157.006.
 TEX. OCC. CODE § 157.001(b).
 See TEX. OCC. CODE 157.051-157.060.
 TEX. OCC. CODE § 301.152.
 TEX. OCC. CODE §157.051(1).
 According to section 301.002 of the Nursing Practice Act,
“Professional nursing” means the performance for compensation of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures. Professional nursing involves:
(A) the observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes;
(B) the maintenance of health or prevention of illness;
(C) the administration of a medication or treatment as ordered by a physician, podiatrist, or dentist;
(E) the administration, supervision, and evaluation of nursing practices, policies, and procedures;
(F) the requesting, receiving, signing for, and distribution of prescription drug samples to patients at sites in which a registered nurse is authorized to sign prescription drug orders as provided by Subchapter B, Chapter 157;
(G) the performance of an act delegated by a physician under Section 157.052, 157.053, 157.054, 157.0541, 157.0542, 157.058, or 157.059; and
(H) the development of the nursing care plan.
TEX. OCC. CODE § 301.002 (emphasis added).
 TEX. OCC. CODE Ch. 203.
 TEX. OCC. CODE § 203.003.
 TEX. OCC. CODE § 157.004.
 TEX. OCC. CODE § 157.004.
 TEX. OCC. CODE §157.101(b); 22 TEX. ADMIN. CODE 193.7.
 22 TEX. ADMIN. CODE 193.7(c).
 The pharmacist must practice in a hospital, hospital-based clinic, or an academic health care institution, must provide the pharmacists and delegating physician’s name on each prescription signed by the pharmacist, and must provide a copy of the protocol to the Texas State Board of Pharmacy. 22 TEX. ADMIN. CODE 193.7(c)(4)(A)-(C).
 22 TEX. ADMIN. CODE 193.7(c).
 TEX. OCC. CODE §157.101(b).
 TEX. OCC. CODE §157.101(f).
 TEX. OCC. CODE§157.101(c).
 22 TEX. ADMIN. CODE 193.7(f).
 22 TEX. ADMIN. CODE 193.8(b).
 22 TEX. ADMIN. CODE 193.8(b).
 22 TEX. ADMIN. CODE 193.8(c).
 22 TEX. ADMIN. CODE 193.8(d).
 22 TEX. ADMIN. CODE 193.8(f).
 TEX. OCC. CODE § § 204.153, 204.051, 204.202
 TEX. OCC. CODE § 204.202(a).
 TEX. OCC. CODE § 204.202(b).
 TEX. OCC. CODE § 204.202(c).
 TEX. OCC. CODE § 204.207(a).
 TEX. OCC. CODE § 204.207(b).
 TEX. OCC. CODE § 204.204(a).
 TEX. OCC. CODE § 204.204(b).
 TEX. OCC. CODE § 204.202(e).
 22 TEX. ADMIN. CODE §185.16(b).
 Trailblazer Health Enterprises, Non-Physician Practitioners Manual, (2009).
 TEX. OCC. CODE § 204.205.
 Texas Medicaid and Healthcare Partnership, Texas Medicaid Provider Procedures Manual, (2009).
 1 TEX. ADMIN. CODE § 354.1060(2).
 Trailblazer Health Enterprises, ‘Incident To’ Services Manual, (2009).
 “Dangerous drug” has the meaning assigned to that term by Section 483.001(2) of the Texas Health and Safety Code. TEX. OCC. CODE §157.051(2-b).
 TEX. OCC. CODE §157.002.
 TEX. OCC. CODE §157.002.
 TEX. OCC. CODE §157.002(e).
 22 TEX. ADMIN. CODE § 193.6.
 22 TEX. ADMIN. CODE § 193.6(a).
 22 TEX. ADMIN. CODE § 193.6(f)(1).
 22 TEX. ADMIN. CODE § 193.6(f)(2).
 22 TEX. ADMIN. CODE § 193.6(f)(2).
 22 TEX. ADMIN. CODE § 193.6(f)(3).
 22 TEX. ADMIN. CODE § 193.6(i).
 22 TEX. ADMIN. CODE § 193.6(i).
 TEX. OCC. CODE § 157.0511; 22 TEX. ADMIN. CODE 193.6(n).
 TEX. OCC. CODE § 157.0511(b-1).
 “Medically underserved area” is defined in TEX. OCC. CODE § 157.052(a)(2).
 Section 157.052(c) of the Texas Occupations Code provides that a physician may delegate to a “registered nurse or physician assistant.” However, “registered nurse” in this section is defined as a “registered nurse recognized by the Texas Board of Nursing as having the specialized education and training required under Section 301.152.” TEX. OCC. CODE § 157.052(a)(3). A registered nurse with the specialized education and training required under section 301.152 is an APN. TEX. OCC. CODE § 301.152.
 TEX. OCC. CODE § 157.052(c).
 TEX. OCC. CODE § 157.0511(a).
 22 TEX. ADMIN. CODE § 193.6(b)(1); 22 TEX. ADMIN. CODE § 193.6(n).
 22 TEX. ADMIN. CODE § 193.6(b)(2); TEX. OCC. CODE § 157.052.
 22 TEX. ADMIN. CODE § 193.6(b)(3).
 TEX. OCC. CODE § 157.053; 22 TEX. ADMIN. CODE § 193.6(c)(2).
 TEX. OCC. CODE § 157.053; 22 TEX. ADMIN. CODE § 193.6(c)(1).
 TEX. OCC. CODE § 157.053(c); 22 TEX. ADMIN. CODE § 193.6(c)(3).
 TEX. OCC. CODE § 157.053(c); 22 TEX. ADMIN. CODE § 193.6(c)(3).
 See, e.g., TEX. OCC. CODE § 157.0541(c)(3).
 TEX. OCC. CODE § 157.053(e)(1); 22 TEX. ADMIN. CODE § 193.6(c)(4).
 TEX. OCC. CODE § 157.053(f); 22 TEX. ADMIN. CODE § 193.6(c)(4).
 TEX. OCC. CODE § 157.054; 22 TEX. ADMIN. CODE § 193.6(e)(1).
 TEX. OCC. CODE § 157.054(a); 22 TEX. ADMIN. CODE § 193.6(e)(1).
 TEX. OCC. CODE § 157.054(c); 22 TEX. ADMIN. CODE § 193.6(e)(3).
 TEX. OCC. CODE § 157.054(c).
 TEX. OCC. CODE § 157.0541(b); 22 TEX. ADMIN. CODE § 193.6(d)(2).
 TEX. OCC. CODE § 157.0541(a); 22 TEX. ADMIN. CODE § 193.6(d)(1).
 22 TEX. ADMIN. CODE § 193.6(d)(3)(a).
 TEX. OCC. CODE § 157.0541(c)(3); 22 TEX. ADMIN. CODE § 193.6(d)(3)(B)-(C).
 TEX. OCC. CODE § 157.0541(c)(1)(B); 22 TEX. ADMIN. CODE § 193.6(d)(3)(D).
 TEX. OCC. CODE § 157.0541(e).
 TEX. OCC. CODE § 157.0541; TEX. OCC. CODE § 157.0542(B-1)(1)-(3).
 TEX. OCC. CODE § 157.059(b).
 TEX. OCC. CODE § 157.059(c).
 TEX. OCC. CODE § 157.059(f).
 TEX. OCC. CODE§ 157.059(f)-(j).
 22 TEX. ADMIN. CODE 193.6(l)(3).
 See 22 TEX. ADMIN. CODE 193.4.
 22 TEX. ADMIN. CODE 193.4.
 See e.g. 22 TEX. ADMIN. CODE 193.6.
 22 TEX. ADMIN. CODE 193.4.
 22 TEX. ADMIN. CODE 193.5.
 TEX. HEALTH & SAFETY CODE ANN. §572.002.
 TEX. HEALTH & SAFETY CODE ANN. §572.0025(f)(1).
 Op. Tex. Att’y Gen. No. GA-0066 (2003), citing Tex. Health & Safety Code §572.0025(f)(1).
 TEX. HEALTH & SAFETY CODE ANN. §572.0025(f)(1)(A).
 TEX. OCC. CODE§ 453.201.
 TEX. OCC. CODE§ 453.004(a).
 Op. Tex. Att’y Gen. No. JM-421 (1986).
 TEX. OCC. CODE§ 453.004(a)(1).
 TEX. OCC. CODE§ 453.201.
 TEX. OCC. CODE§ 453.213.
 TEX. OCC. CODE§157.058(a); 22 TEX. ADMIN. CODE 193.6(k)(1).
 TEX. OCC. CODE§157.058(b).
 TEX. OCC. CODE§157.058(c).
 Op. Tex. Att’y Gen. No. JC-0117 (1999).
 TEX. OCC. CODE§ 157.058.
 Op. Tex. Att’y Gen. No. JC-0117 (1999).
 TEX. H & S CODE § 671.001(d).
 TMA Board of Councilors Opinion: Death Issues, Pronouncement of Death by Registered Nurses, p.6.
 22 TEX. ADMIN. CODE §193.9(a).
 22 TEX. ADMIN. CODE §193.9(c).
 22 TEX. ADMIN. CODE §193.9(d).
 22 TEX. ADMIN. CODE § 193.5.
 TEX. OCC. CODE§ 164.052; TEX. OCC. CODE§ 164.053.
 TEX. OCC. CODE§ 157.060.
 TEX. OCC. CODE§ 157.004(c).