California Governor Gavin Newsom’s March 30th Executive Order authorized the Department of Consumer Affairs to issue waivers of certain laws and regulations pertaining to healthcare licensees. On April 14th, the Department of Consumer Affairs issued Waiver Order 20-04, waiving certain key restrictions on physician assistants’ (“PAs’”) supervision.
The waiver order “only applies if” a PA moves to a hospital or practice setting “to assist with the COVID-19 response”; or, if no supervising physician is available to supervise the PA pursuant to a practice agreement because of COVID-19.
4:1 Ratio of PAs Supervised Per Supervising MD Waived
Under the Department’s Order, the maximum ratio of four PAs for any one supervising physician is waived. Where the waiver order applies, there is no set numerical limitation of the number of PAs per supervising physician. This waiver is clearly intended to increase the availability of PAs in hospitals and other settings where the COVID surge taxes available resources. Rather than having an arbitrary limit to the number of PAs a physician may supervise, this waiver places the onus upon the PA and supervising physician to identify the reasonable limits of supervision.
The Order maintains the requirement that all PAs must be supervised by a physician, but the requirement for a practice agreement or a delegation of services agreement is waived. In explaining why it issued this Order, the Department noted in its Guidance Memorandum that the requirement for a PA to have a written agreement for supervision with a supervising physician “complicates and impedes where and how PAs can practice and prevents PAs, despite their competence to perform varied medical services, from stepping in urgently where they are needed most.”
The Order also loosens the requirements in place for PAs to order or furnish drugs or devices; for those PAs subject to this Order, they do not need to have a practice agreement in place with a supervising physician to be able to prescribe controlled substance medications. However, even under the Order, a supervising physician must sign off on a patient-specific prescription for DEA scheduled II or III medications (which includes all opiate narcotics and most benzodiazepines/anti-anxiolytics).
These Waivers Expand the Loosening of Restrictions for PAs Begun in Legislation, Which Became Effective January 1, 2020
Prompted by strong and effective lobbying from the California Association of Physician Assistants (CAPA), California Senate Bill 697 was enacted and made sweeping changes to the Physician Assistant Practice Act. The substantial changes to the permissible scope of practice for PAs became effective January 1, 2020. Impressively, the Bill had such strong support in the Legislature that it passed without a single nay vote during the legislative process.
California’s changes in PA law are consistent with the trend nationally to ease restrictions placed on PAs and to expand the scope of work handled by them. In May 2016, the American Association of Physician Assistants (AAPA) approved a new version of its “Guidelines for State Regulation of PAs.” AAPA’s new guidelines “provide that PA scope of practice should consist of activities for which the PA is prepared by education and experience, do not tie PA scope of practice to a physician’s, do not require physician delegation, replace references to physician “supervision” with “collaboration,” and repeal the requirement that physicians should be responsible for PA-provided care” (www.AAPA.org). Under these new guidelines, state PA associations may also pursue “even more progressive provisions that would increase PA practice authority, should the opportunity arise.”
Under prior California law, PAs were required to enter into a “Delegation of Services” agreement with a supervising physician, who would identify and delegate to the PA the authority to conduct certain duties. This delegation stemmed from the concept that PAs were agents of the supervising physicians, and could only perform acts within the physician’s scope of practice that were specifically identified in the Delegation of Services agreement. Importantly, the PA’s scope of practice is no longer curtailed by the scope of the supervising physician’s practice area(s). Under SB 697, the scope of a PA’s practice was broadened to allow the PA to perform any duties for which the PA is competent based upon the PA’s education, training and experience.
Though a PA still must be supervised by a supervising physician, the agreement between them relating to supervision is now called a “practice agreement.” Moreover, the practice agreement is to be constructed through the collaboration between the physician and PA.
The proof of supervision a California PA and supervising physician were previously required to show has largely been eliminated. Supervising physicians are no longer required to co-sign any specific number or percentage of medical charts, nor to review the PA’s documentation of any specific number or percentage of patient visits. Similarly, prescriptions written by PAs are no longer required to display the name of the supervising physician.
Will Physician Shortages and Health Crisis Lead to Future Changes to the Scope of Practice of PAs?
The impetus for the unanimous passage of SB697 was the clearly recognized need to expand the ranks of primary care providers to address the a physician shortage and the resulting lack of access to affordable health care driven by an aging population, greater numbers of insured patients due to the ACA, and a bottleneck limiting newly trained physicians. Any allegiances to the way things were as well as any concerns about quality of care due to reductions in physician supervision did not delay the passage of this Bill or inhibit the scope of changes it made to the PA Act.
Obviously, the expansions of the Waiver Orders were prompted by the need to have sufficient providers to address the potential surge of patients requiring treatment for COVID symptoms.
These two purposes have dovetailed to give PAs in California greater autonomy than ever before permitted by California law. Lawmakers, policy makers and healthcare providers will undoubtedly be closely observing the impacts of the the loosening of restrictions with the Waiver Order and SB 697. It will be interesting to see if any further loosening of practice restrictions occurs following the experience gained during this period.
David Balfour has nearly two decades of experience representing clients in the healthcare sector on a wide range of issues including medical staff peer review proceedings, licensing proceedings, writ proceedings, State and ...
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