Can a Physician Assistant run your medical practice? 

As my Yiddish Bubbie used to say, halevai, which in Yiddish means, “would that it be so!”

By the end of today’s video, you’ll know whether this wish corresponds with reality.  We’ll walk through some of the legal compliance fine points, and, danger zones.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group.  Since 1999, our law firm has counseled hundreds of healthcare industry clients every year on healthcare and FDA legal issues.  Among our clients, we work with many medical doctors and nurses to help them create successful healthcare practices and businesses.

Let’s talk about the role of the Physician Assistant.

According to the California Physician Assistant Board, a Physician Assistant, or PA:

“performs many of the same diagnostic, preventative, and health maintenance services as a physician. These services include, but are not limited to, the following:

• Taking health histories
• Performing physical examinations
• Ordering X-rays and laboratory tests
• Ordering respiratory, occupational, or physical therapy treatments
• Performing routine diagnostic tests
• Establishing diagnoses
• Treating and managing patient health problems
• Administering immunizations and injections
• Instructing and counseling patients
• Providing continuing care to patients in the home, hospital, or extended healthcare facility
• Providing referrals within the health care system
• Performing minor surgery
• Providing preventative health care services
• Responding to life-threatening emergencies.”

For this to work, under the law, the supervising physician and the PA must have a written Delegation of Services Agreement, signed and dated by each supervising physician, specifying the medical services the supervising physician is delegating to the PA. A supervising physician may supervise up to four PAs at any one time. The supervising physician must be available in person or by electronic communication at all times when the PA is caring for patients. The supervising physician has continuing responsibility to follow the progress of the patient and to make sure that the PA does not function autonomously.

In other words, the supervising physician can delegate, but cannot abdicate, responsibility for patient care, to the PA.

The Delegation of Services Agreement typically includes such terms as:

• A description of the practice setting.
• A listing of the categories of delegated duties.
• A description of the process and schedule for review of prescribing, dispensing, and administering legend and controlled drugs and medical devices by the PA authorized to prescribe.

The Agreement must be maintained by the supervising physician and PA and available for review by the respective Boards, upon request.

So far, we’ve talked about the supervisory relationship between the supervising physician and the physician assistant, and how this gets defined and codified in a Delegation of Services Agreement, as this document in called under California law, or whatever the document is named in the appropriate state where the practice is located.

But what if the PA is the one who is there most of the time, who’s popular with the patients, and, who’s really good at marketing and is primarily responsible for the growth of the practice?

In many states, including California, state law allows physicians and PAs to co-exist as shareholders in a professional corporation.

This allows the practice to reward the PA, in a sense, for the PA’s marketing role, without necessarily tying in the reward to specific referrals or volume of business.

However, being shareholders together in the same professional corporation is different than the relationship that exists where the physician is supervising, and probably also employing, the PA. So you go shareholder vs employer.

Shareholders have different duties toward one another and toward the corporation.

One of our clients came to us after the fact, with a professional corporation in which the PA was majority shareholder.  This posed corporate practice of medicine challenges; and, as well, the physician later had a hard time wrestling control back from the PA.  Chaos ensued when the two parted ways and the PA tried to make away with the patient database and all the medical charts.

We had another variation on this chaotic situation, where the client was a businessperson who did not have any kind of healthcare licensure.  The businessperson was good at marketing and also had found the PA to treat patients, and then they added a medical doctor as a kind of after-thought.

A long time ago the tagline for my healthcare law practice was: “Don’t roll the dice, get legal advice!”  Too many people go in the wrong direction before getting legal counsel, and then need to hire litigation attorneys to help clean up a bad situation.  Others get in trouble with their Boards, or both simultaneously.

We like our healthcare clients to come to us early in the game, before someone creates a mess with fellow healthcare practitioners and business partners or shareholders.

As they say in medicine, an ounce of prevention is worth a pound of cure.

Thanks for watching. Here’s to the success of your healthcare venture, we look forward to speaking to you soon.

Update: California SB 697 (Effective as of January 1, 2020)

The act authorizes a physician assistant, under the supervision of a physician and surgeon, to administer or provide medication to a patient, or transmit orally, or in writing on a patient’s record or in a drug order, an order to a person who may lawfully furnish the medication or medical device, subject to specified requirements.

This bill would revise and recast these provisions to, among other related changes, authorize a physician assistant to furnish or order a drug or device subject to specified requirements, including that the furnishing or ordering be in accordance with the practice agreement and consistent with the physician assistant’s educational preparation or for which clinical competency has been established and maintained, and that the physician and surgeon be available by telephone or other electronic communication method at the time the physician assistant examines the patient. The bill would also authorize the physician assistant to furnish or order Schedule II or III controlled substances in accordance with the practice agreement or a patient-specific order approved by the treating or supervising physician and surgeon.