by Wayne Wenske, Senior Marketing Strategist,
Tanya Babitch, Assistant Vice President of Risk Management, and
Robin Desrocher, Director, Risk Management
In a medical practice, it is important for physicians to understand the rules and responsibilities when managing health care staff. Here are answers to common staffing questions.
Should I perform background checks on employees?
Under the legal doctrine of respondeat superior, an employer is responsible for wrongful acts or omissions if such acts occur within the scope of the employment. Like any employer, a physician is required to select, train, supervise, and discipline employees in a manner consistent with providing safe, quality patient care. Checking references and performing background checks reflects your efforts to employ qualified personnel. Before doing so, employers must notify applicants and obtain written authorization. This information should be documented in the employee's personnel file.
More information is available in the Texas Workforce Commission’s publication, Especially for Texas Employers which includes a section on Hiring: Basic Legal Issues for Employers. The Texas Medical Association offers a Job Screening Checklist and additional tools on their Human Resources page.
In Texas, criminal background checks can be performed through the Texas Department of Public Safety (DPS). A name search can be conducted on the DPS website.
What is my responsibility when supervising advanced practice providers (APPs) such as physician assistants (PAs) or advanced practice registered nurses (APRNs) in Texas?
The Medical Practice Act (MPA) establishes minimum standards for the supervision by physicians of PAs and APRNs in Texas. “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 PAs or APNs, or their full-time equivalent. The only exception relates to supervision and prescriptive delegation to a medically underserved population or in facility based practice.” - TMB Supervision & Prescriptive Delegation FAQs & Rule 193.7
Prescriptive authority agreements, standing delegation orders, standing medical orders, physician's orders, or other orders or protocols may authorize diagnosis of the patient's condition and treatment. Neither the MPA nor the Texas Medical Board (TMB) authorize the exercise of independent medical judgment by PAs or APRNs. The supervising physician remains responsible to patients for acts performed under the physician's delegated authority.
Physician supervision should conform to what a reasonable, prudent physician would find consistent with sound medical judgment, and may vary given the education and experience of the APP. A physician should provide continuous supervision, but the constant physical presence of the physician is not required. If not on-site, the physician must be easily contacted by telephone, text, or other telecommunication device.
TMB rules regarding the supervision of APPs (both PAs and APRNs) can be found in chapters 185 and 193.6 of the Board rules, and the Texas Occupations Code Chapter 157. The TMB also provides FAQs regarding prescriptive delegation for more information.
For additional information, you may also read the 2021 TMLT Reporter article, “Supervising advanced practice providers: Definitions, agreements, and delegation,” on the TMLT Resource Hub.
What is a “Prescriptive Authority Agreement”?
Texas physicians wishing to delegate prescriptive authority to APPs must establish a Prescriptive Authority Agreement (PAA). The PAA is an agreement entered into by a physician and an advanced practice registered nurse or physician assistant through which the physician delegates to the [PA or APRN] the act of prescribing or ordering a drug or device. For more information about Prescriptive Authority Agreements, please see Rule 185.31 of the Texas Administrative Code.
What elements must be included in a Prescriptive Authority Agreement?
Per the TMB, “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.”- TMB Prescriptive Authority Agreement FAQs
Are there any special considerations when supervising a PA?
Before you supervise a PA in Texas, you must notify the TMB of your intent and be approved to supervise.
In Texas, a PA may only be supervised by a physician who currently holds a Texas physician license that is “unrestricted and active.” The notification to the TMB must state that the supervision will be conducted according to TMB rules and that the physician will be professionally and legally responsible for the care provided by the PA to patients.
Both the supervising physician and the PA are obligated to ensure the following conditions are met in a supervisory relationship.
- The PA's scope of practice is identified. A scope of practice describes what services the physician may delegate to a PA that are within the PA’s education, training, and competencies and in what setting (clinic, office, hospital, etc.). These services may include obtaining patient histories, performing physical exams, ordering a diagnostic or therapeutic procedure, or forming a working diagnosis.
- Delegation of medical tasks by the physician to the PA is appropriate to the PA's level of competence.
- Methods of access to and communicating with the supervising physician are defined and agreed upon.
- A process for evaluating the PA's performance is established.
- The PA is licensed to practice and has a current registration permit. If there are any changes to the PA’s licensure (expiration, cancellation, disciplinary action), the PA must immediately notify their supervising physician(s).
Are responsibilities different when supervising an orthopedic physician assistant?
Supervising an orthopedic physician assistant (OPA or OPA-C) involves substantial differences. OPAs are trained differently, have different education standards, and take a separate certification examination. OPAs have a more limited scope of practice, working directly with a physician in a supportive role. They are not allowed to prescribe medication, establish a diagnosis, or order or interpret diagnostic tests. They are not recognized as providers under Medicare.
Most OPAs are trained on the job, and work as orthopedic technologists or surgical assistants, with duties that emphasize orthopedic disease and injury, management of equipment and supplies, operating room techniques, cast application and removal, office procedures, and an orientation to prosthetics and orthotics.
What is my responsibility when delegating tasks to unlicensed employees?
Provided that you are satisfied with the competence of your employee, with due regard to 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 that do not require the exercise of independent medical judgment. Please see TMB Standing Delegation Orders, Chapter 193 for more information.
Unlicensed employees can be trained to perform some tasks associated with the delivery of patient care; however, some tasks are inappropriate to delegate and the accountability for the competent performance of that task remains with the physician.
In determining the appropriate role for unlicensed personnel, you should consider the capabilities of the employee, the complexity of the task, and the amount of supervision required. Employers can be held liable for negligent delegation if they:
- delegate a task they know or should know the person does not have the training or experience to complete;
- do not provide the degree of supervision the employer knows or should know is needed;
- delegate tasks contrary to the medical/nurse practice act;
- delegate tasks that pose substantial risk of harm to a patient or are present and fail to act when possible to avoid patient injury; and
- do not properly allocate the time of available staff.
If you have evaluated these factors, and deemed delegation of tasks to staff appropriate, the duties you delegate should be outlined in written delegation protocols. Training, education, and observation of each staff member should be documented.
How do I minimize my exposure to “vicarious liability” in a claim or lawsuit?
Because physicians who delegate duties within their practices can be held vicariously liable for activities performed by staff members, it is recommended that physicians maintain employee personnel files for each staff member. These files should include a written job description, signed confidentiality agreements, verification of current licensure, signed acknowledgment of policies and procedures, and transcripts for all training obtained.
A physician expected to supervise APPs may or may not be directly involved in the hiring decisions. Therefore, it is important to be aware of new staff members and to promptly raise any concerns about the conduct and/or quality of care provided by an APP or any staff member.
You may also consider regularly checking staff work habits by occasionally asking patients for feedback. Such checks can reassure the physician regarding staff performance; ensure that the physician is aware of any issues regarding the staff member’s work; and help alert the physician to problems or issues that may lower patient satisfaction.
It is also vitally important to maintain written policies and procedures for all staff members to follow. These are helpful to ensure a standardized process is followed by both the supervising physician and staff members, and that each care team member understands their responsibilities. Whenever policies and procedures are updated or changed, communicate these changes within your organization or practice. Instruct all employees to sign and date the policies and procedures to acknowledge they have read and understand the changes.
TMLT policyholders also have access to information on employment and human resources issues through EPLI Pro. EPLI Pro offers webinars, workforce training, and information on creating staff handbooks and policies and procedures. (Please log in to myPortal, our members-only portal, to access ELPI Pro.)