Definition of "Unprofessional Conduct" and Physician Assistant Employment Arrangements

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December 1, 2006

Ms. LaSharn Hughes, Executive Director

c/o Ms.Diane Atkinson

Georgia Composite Board of Medical Examiners

36th Floor

2 Peachtree Street, NW

Atlanta, Georgia 30303

Dear Ms. Hughes:

The American Academy of Physician Assistants is the national professional society for physician assistants (PAs). In this capacity, the Academy represents over 60,000 physician assistants in the United States. The Academy would like to comment on the Georgia Composite Medical Board of Medical Examiners’ proposed change to Chapter 360-3.02, entitled “Unprofessional Conduct Defined.” The board’s proposal seeks to add the following to the definition of “Unprofessional Conduct”:

21. To be employed by an individual whom the physician supervises in the performance of medical tasks or providing patients’ services and/or to whom the physician delegates authority.
22. Failing to maintain any of the following:
(a)  a list of professional samples approved for request, receipt and distribution by a physician’s assistant whom the physician supervises;
(b)  a current and complete list of the specific number and dosage of each professional sample received and dispensed by a physician’s assistant whom the physician supervises.

The board’s Notice of Proposed Rulemaking states that the rule is required to further define unprofessional conduct as it relates to physicians being employed by an individual whom the physician delegates services to and how professional samples should be handled by the physician.

Chapter 360-3.02.22, “Unprofessional Conduct Defined”

PAs and Sampling in Georgia

Physician assistants (PA) have been practicing with physician supervision in Georgia since 1972. PAs provide medical services under the supervision of a physician. An integral component of providing medical services is the ability to request, receive and distribute professional samples.

Physician assistants (PAs) have physician delegated prescriptive authority in 49 states, the District of Columbia, and Guam. Sampling is only possible in jurisdictions where PAs may prescribe. Some state laws and regulations authorize PAs to request, receive, sign for, and distribute professional samples, while a handful of states specifically prohibit this activity. In the states where the state statutes and regulations are silent on the issue of sampling for PAs, physician assistants who may prescribe may also request, receive, and sign for samples under federal law.

 

Prescribing by PAs, as governed by state laws and regulations and supervising physicians, can improve access to comprehensive health care for patients in Georgia. Drug sampling is an extension of a PA’s physician delegated prescriptive authority. Sampling is seen by many as a way for health care providers to start therapy and treatment immediately, evaluate the effectiveness or adverse effects of a drug, or determine the proper dose prior to having the patient purchase a medication. This can be especially important when pharmacy service is limited or when purchasing medications is an economic hardship for the patient. The Georgia Assembly recently demonstrated its concern for the issue by codifying a physician assistant’s ability to request, receive, and distribute professional samples (Ga. Code Ann. § 43-34-103(e)(3)(10). The Academy appreciates the Medical Board’s efficient promulgation of an accompanying rule to address this issue and supports adoption of 360-3.02.22 as proposed.

Chapter 360-3.02.21, “Unprofessional Conduct Defined”

Background on the Physician-PA Team

The physician assistant profession was created by physicians to allow doctors to extend their ability to care for patients by working with professionals trained in the medical model who would practice with physician delegation and supervision. During the nearly forty year history of the profession this basic principle has held true. PAs embrace and seek practice with physician supervision. Physician assistants readily recognize physicians as the most comprehensively educated members of the health care team, and believe that the PA’s ability to provide patient care is enhanced by this sustained relationship with supervising physicians. The physician assistant profession is enduringly committed to the tenet that PAs practice with physician supervision. To quote from Academy Policy:

The AAPA believes that the physician-PA team relationship is fundamental to the PA profession and enhances the delivery of high quality health care. As the structure of the health care system changes, it is critical that this essential relationship be preserved and strengthened.1

The PA profession has not sought nor promoted independent practice by PAs. Physician assistants are licensed to practice in all fifty states, the District of Columbia, several U.S. territories, and are authorized to practice by federal employers (i.e. the Department of Defense, Department of Veterans Affairs and the Public Health Service). In all of these jurisdictions practice with physician supervision is required.

Physician and Physician Assistant Obligations are Aligned

Every physician and every physician assistant have medical, ethical and legal obligations in patient care. While physician practice is much more comprehensive than PA practice, with the exception of the obligation to supervise, these obligations are the same for physicians and PAs. Education of physicians and physician assistants focuses on the means and methods to assess patients, promote wellness and treat injury and illness. The ethical codes of both professions hold physicians and PAs to similar obligations to patients. Under Georgia Code the board may discipline a physician for “any departure from, or failure to conform to, the minimal standards of acceptable and prevailing medical practice.”2 The board is also expressly authorized to discipline PAs for “unethical conduct.”3 Both physicians and PAs are at risk for malpractice litigation if an unacceptable outcome of medical care occurs.

With due respect for the board’s concern for employment arrangements, the Academy believes that these obligations are aligned independent of the business arrangements involved. The physician who is an employee of a hospital is held to the same medical, ethical and legal standards as a physician who is in private practice and is directly compensated by the patients seen in the practice. The same would be true for a physician who is an employee of a practice partly or totally owned by a physician assistant.

Physician Assistants as Shareholders in Professional Corporations

An increasing number of states are recognizing that employment and supervision are separate and unrelated aspects of medical practice. As practice changes from solo physician based to group and partnership based practice models, a growing number of states allow PAs to become shareholders in professional corporations. Indeed, only three states (Maine, Oklahoma, and Utah) restrict a physician from supervising a PA who is the employer of the physician.

It is not the goal of most PAs to participate in the ownership of clinics. However, the ability of PAs to have flexibility in clinic ownership and administration can have dramatic impact on access to care. For example, in rural practice a single physician and PA may work together. If the physician leaves the practice the clinic is forced to close unless another physician can be located to act as a supervising physician. A physician in a neighboring community may be perfectly willing to supervise the physician assistant, but may not want to assume the burden of owning another medical practice. The physician should also be compensated for the time it takes to supervise the physician assistant. In this scenario restricting the physician from supervising the PA who provides compensation to the doctor has the potential to cause the clinic to close. This restricts access to medical care for the patients in the community.

The Board’s Authority to Regulate Supervision

While the Academy does not believe that the rule as proposed should be adopted, we do agree that the board should have authority to regulate supervision. Currently the board’s rules for physician assistants define unprofessional conduct for physicians to include lack of appropriate supervision of PAs.4 The board should take disciplinary action against physicians who fail to appropriately supervise PAs. This should be the case irrespective of the physician’s employment arrangements. The board should also take disciplinary action against PAs who practice without physician supervision.

Conclusion

The Academy supports adoption of 360-3.02.22. With due respect for the board’s concern for appropriate supervision, the Academy opposes adoption of 360-3.02.21 as published. We believe that the interests of patients can be appropriately served irrespective of employment arrangements, and that adoption of the rule as drafted has the potential to restrict access to care for some of Georgia’s most vulnerable populations.

We would encourage the board to withdraw proposed 360-3.02.21, and in its stead consider promulgation of a regulation to add “inadequate or inappropriate supervision of physician assistants and other supervised health care providers” to the definition of unprofessional conduct for physicians. We believe that this option would accomplish the board’s goals without placing unnecessary restrictions on providers or potentially decreasing access to care for patients.

The Academy appreciates the opportunity to provide comments on this proposed regulation.

Sincerely,

Ramon Gardenhire, JD

Assistant Director of State Government Affairs

1. American Academy of Physician Assistants 2004-2005 Policy Manual. Alexandria, VA.

2. Georgia Annotated Code 43-34-37

3. Georgia Code Annotated 43-34-107

4. Rules of the Composite State Board of Medical Examiners Chapter 360-5-.09