Defining and Delimiting Exemptions from Minimum Wage

and Overtime Pay

June 24, 2003

 

Tammy D. McCutchen

Administrator, Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Room S-3502

200 Constitution Avenue, NW

Washington , DC   20210

 

Re:   Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, RIN 1215-AA14

Dear Ms. McCutchen:

 

On behalf of the nearly 46,000 clinically practicing physician assistants (PAs) who are represented by the American Academy of Physician Assistants (AAPA), I am pleased to submit comments on the Department of Labor's proposed rule to update and revise the regulations implementing the Fair Labor Standards Act (FLSA) exemption from minimum wage and overtime pay (29 CFR, Part 541, Federal Register , Vol. 68, No. 61, March 31, 2003). The Academy's comments on the proposed rule are restricted to the proposed rule's classification of PAs as "learned professionals" in section 541.301 (e) (4).

 

The American Academy of Physician Assistants applauds the Department of Labor for acknowledging the role of PAs as health care professionals. However, the criteria used to define PAs (section 541.301 (e)(4)) is inaccurate and must be corrected. Additionally, the Academy believes that PAs should more accurately be classified through section 541.304, "Practice of law or medicine," as opposed to section 541.301, "Learned professionals."

 

Section 541.301(e)(4)

 

Physician assistants are health professionals licensed, or in the case of those employed by the federal government, credentialed, to practice medicine with physician supervision. Physician assistants are qualified by graduation from an accredited physician assistant educational program and/or certification by the National Commission on Certification of Physician Assistants (NCCPA).

 

The criteria used to define PAs in section 541.301(e)(4) is an unusual combination of the typical background of individuals who are accepted into PA educational programs and a truncated version of the PA educational curriculum. While it is true that prior to admission to a PA program, the typical PA student has a bachelor's degree and 45 months of health care experience, this more accurately reflects a standard for admission into a PA educational program -- not a standard that qualifies an individual to practice as a PA. Additionally, section 541(e)(4) defines PAs as having "not less than one year of professional course work in a medical school or hospital." This standard is both too restrictive and too basic. Accredited PA educational programs are located in more settings than a medical school or hospital; the one year requirement does not capture the breadth of the PA educational curriculum.

 

Physician assistant programs are located at schools of medicine or health sciences, universities, teaching hospitals, and the Armed Services. All PA educational programs are intensive education programs that are accredited by the Accreditation Review Commission on Education for the Physician Assistant.

 

The typical PA program consists of 111 weeks of instruction. The first phase of the program consists of intensive classroom and laboratory study, providing students with an in-depth understanding of the medical sciences. More than 400 hours in classroom and laboratory instruction are devoted to the basic sciences, with over 70 hours in pharmacology, more than 149 hours in behavioral sciences, and more than 535 hours of clinical medicine.

 

The second year of PA education consists of clinical rotations. On average, students devote more than 2,000 hours or 50-55 weeks to clinical education, divided between primary care medicine and various specialties, including family medicine, internal medicine, pediatrics, obstetrics and gynecology, surgery and surgical specialties, internal medicine subspecialties, emergency medicine, and psychiatry. During clinical rotations, PA students work directly under the supervision of physician preceptors, participating in the full range of patient care activities, including patient assessment and diagnosis, development of treatment plans, patient education, and counseling.

 

Physician assistant education is competency based. After graduation from an accredited PA program, the physician assistant must pass a national certifying examination jointly developed by the National Board of Medical Examiners and the independent National Commission on Certification of Physician Assistants (NCCPA). To maintain certification, PAs must log 100 continuing medical education credits over a two-year cycle and reregister every two years. Also to maintain certification, PAs must take a recertification exam every six years.

 

The standard to practice as a PA includes graduation from an accredited PA educational program and NCCPA certification. Accordingly, the standard used in the FLSA regulations should require graduation from a PA educational program accredited by the Accreditation Review Commission on Education for the Physician Assistant and initial certification by the NCCPA.

Section 541.304

Physician assistants are legally regulated in all states to practice medicine as delegated by and with the supervision of a physician. Physicians may delegate to PAs those medical duties that are within the physician's scope of practice and the PA's training and experience, and are allowed by law. A physician assistant provides health care services that were traditionally only performed by a physician. Forty-seven states, the District of Columbia, and Guam authorize physicians to delegate prescriptive privileges to the PAs they supervise. An estimated 170 million patient visits were made to PAs and approximately 213 million medications were prescribed or recommended by PAs in 2001.

 

PAs work in virtually every area of medicine and surgery and are covered providers of physician services through Medicare, Tri-Care, and most private insurance plans. Additionally, PAs are employed by the federal government to provide medical care, including the Department of Veterans Affairs, the Department of Defense, and the Public and Indian Health Services.

 

PAs meet the standard of section 541.304(1) and (2) by holding a valid license, or in the case of federally employed PAs, authorization to practice medicine with physician supervision and by holding the requisite academic degree for the practice of medicine as a PA. Section 541.304(2)(b) would clearly accommodate PAs through its statement, "In the case of medicine, the exemption applies to physicians and other practitioners (emphasis added) licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners."

 

Physician assistants meet the criteria included in section 541.304, "practice of law or medicine," and should be included within this section of the FLSA regulations.

 

The American Academy of Physician Assistants is very pleased that the Department of Labor has acknowledged the role of the PA profession through the proposed FLSA rule and is hopeful that the proposed rule will be improved through the inclusion of an accurate standard for PA practice, as well as the inclusion of PAs within section 541.304. Should you have any questions or require additional information, regarding the PA profession, the role of the Academy, or our recommendation regarding the FLSA exemption of the PA profession, please do not hesitate to contact Sandy Harding, AAPA Director of Federal Affairs at (703) 836-2272, extension 3205.

 

Sincerely,

Stephen C. Crane, PhD, MPH

Executive Vice President, Chief Executive Officer

 

Last Revised: 10/10/03