PHYSICIAN ASSISTANT SUPERVISION - PERSPECTIVE FROM A MEDICAL LICENSE LAWYER IN CALIFORNIA
California has increasingly favored the expansion of the roles of physician assistants. From the perspective of a medical license lawyer in California this political trend raises red flags. It seems wonderful. More primary care available particular to the elderly and underserved. But a medical license lawyer knows history and when the pendulum swings one way politically there can be unforeseen consequences later.
One consequence that we are presently seeing is the allocation of blame when an PA error is the focus of a medical malpractice lawsuit or some version of a peer review or medical staff inquiry. The political winds favoring PA’s may shift the blame from the PA to the physician.
Supervising Eight PA's at Once (B&P 3516)
For example, consider California Business & Professions Code section 3516.
As of January 1, 2024 this revised law allowed a doctor to supervise up to eight PA’s at once. The limitation is that the PAs focus their work solely on home health evaluations. This means they can gather patient information and perform an annual wellness visit or health evaluation. They cannot provide patient treatment or prescribe medication. Who does this law benefit? The physicians? Our medical license lawyers say “No!”. It is a trap for physicians.
The law is wonderful for nursing homes and other elder care facilities. They can hire an outside medical group to provide PA’s to come on site and provide services. But most physicians cannot afford to hire 8 PA’s for such a task. Unless you have dozens of senior facilities under contract, this provision is of no benefit to the doctor. Who has this economic and organization strength? It is large medical corporation. Some doctor who no longer practices puts his smiling face on the entity web page. An individual doctor becomes the designated supervisor and signs the supervision agreement with the PA.
When the other shoe drops, who gets blamed for any missed diagnosis, any act of kindness by the PA that exceeds the limited scope of care or any other failure? It will fall on the supervising doctor. Our standard advice is that no physician accept a job as an “8 PA” supervisor unless we review the contract and situation with great care.
Physician/PA Agreements & Self Help
A medical license attorney in California follows political trends to understand where the medical board may focus its investigations. Remember that a complaint against a physician usually does not proceed to a medical board investigation. Physician Assistant lawyers know that scope of practice is a hot button danger area with the board. But does your Physician/PA agreement cover scope issues with sufficient specificity? An off the internet, found the Physician/PA supervision agreement on Google is not a substitute for having an experience California physician contract lawyer review your specific situation so that your contract is directly responsive to your practice and your needs.
Unfortunately, physician self help with PA contracts is an easy trap. A physician does not need approval from the Board to supervise a physician assistant (PA) unless the physician has had previous problem with the board and his/her medical license is restricted so that it prevents such supervision. Again, this is a political choice because the State of California favors expanding PA’s presence in underserved communities. However, the downside is that ease of hiring a PA makes physicians sloppy in their employment and scope of practice paperwork. Put differently, just because the standard PA scope of practice includes a certain task (e.g. prescribing certain drugs) it does not mean your scope of practice agreement should allow this. Or if it does, the manner by which these substances are prescribed and documented can be defined in your employment agreement.
Medical Board of California Focus Areas for PA/MD Relationships
When does the board abandon its PA friendly view and focus an investigation?
Most often we see this when there is litigation or an administrative investigation. A medical license lawyer who is hired by the doctor will have his radar up to see if the physician assistant defense attorney is going to try to throw the physician under the bus. This happens frequently. The same is true with peer review proceedings. The physician peer review attorney has to be aware that a PA involved in a peer review matter will have been interviewed by organized medical staff and/or the MEC. A physicians assistant is vulnerable, particularly in a hospital setting. Self preservation may take over and skew the recitation of “what really happened”.
The same is true when medical malpractice case involves allegations of neglect by the physicians assistant. There is a tension between the lawyer for the doctor and the physician assistant defense attorney in the same way as with peer review or an MEC/medical staff inquiry.
A California Medical Lawyer Should Review the Initial Contract
A common malpractice allegation is scope of practice and a poorly written agreement can be used against both the PA and employing physician.
There should be a California medical lawyer employed to review all Business & Professions Code section 3502.3 contracts. This is the contract that a physician has with the physician assistant and many doctors use a standard form. We don’t recommend that. An experienced medical license defense attorney will review the form from the perspective of something having gone wrong. Does this physician/PA contract protect the doctor when all hell breaks loose? We view this contract as similar to a marriage prenuptial agreement. If things go wrong do you want certain rights and responsibilities to exist in writing?
In general the physician/PA agreement must at a minimum include certain provisions. These are:
1. The types of medical services the PA is authorized to perform.
2. Policies and procedures to ensure adequate supervision of the PA.
3. Methods for the continuing evaluation of the competency and qualifications of the PA.
4. Rules for the furnishing or ordering of drugs or devices by a PA.
By why not put much more into this agreement? What is not expressed proceeds either by instinct or the MD/PA's understanding of current law. There is a lot of luck and interpretation in this type of shoot from the hip approach.
Your Patients Should Not Rely on Dr. Google - Our Physicians Should Not Rely on Google.ESQ
A good agreement has rules defining when the PA must consult the physician, how to document the chart when there has been a consultation, protocols and procedures for certain repetitive tasks (and so on). Each medical practice is different and our physician contract lawyers can review your specific needs to ensure that your contract is well written. Put differently, we hope you never need a medical license attorney for any matter including your hiring of a PA. However, if you do, we hope that your written agreement puts you in the best possible light during a medical board license investigation or a malpractice action.
DRUGS
There is one final area where our license attorneys have concern.
The Medical Board of California has been highly inconsistent in its approach to doctors prescribing opioids and other scheduled drugs. As you know a physicians assistant may issue orders for Schedule II, III, IV & V drugs. But this is not automatically granted. When we review a contract in the role of a physicians assistant license attorney we have one perspective. When we review the same contract for the doctor, we have a different approach. Again, when things are good there is no conflict. If the medical board is investigating pharmacy or other entity complaints of over prescribing the MD/PA contract may govern whose license is lost. Our license lawyers will review your specific situation in light of the requirements of Business & Professions Code section 3502.1 and many other factors and fashion a fair agreement that meets state standards and protects you.
If Schedule II drugs are ever prescribed it is not enough that the practice agreement (which we call a contract to emphasize the point that there are two sides to this “agreement”), more must be done. The PA must (MUST!) register with the United States Drug Enforcement Administration (DEA) obtain a DEA number, and complete a one-time course in compliance with sections 1399.610 and 1399.612 of Title 16 of the California Code of Regulations. You can’t just be “arms length” from this application and compliance. You, the physician must personally supervise this process and continued compliance. But again, there is a danger. If there is a failure, misstatement or even a simple error the physician’s license may be implicated. Having an experience DEA compliance attorney is a buffer for you and your practice.
We understand that hiring a California Medical License Defense Attorney is an initial expense that “comes right out of your pocket”. If you have an existing practice agreement we can review that agreement and if necessary revise it. We have attorneys expert in this practice area so our costs are reasonable and our expertise is high. Our contract attorneys have written many Physician/PA practice agreements. Our peer review and medical board lawyers have seen what happens when these agreements are inadequate and when the Physician/PA agreement goes wrong.