27 Jul Improving Mental Health Services Through Physician Assistants: Legislation in Several Southern States

By Matthew Buchbinder, JD, Judith Regan, MD, JD, Mirela Aldea, PhD, and Denise Makowski, PsyD

ABSTRACT: A national effort to provide more expansive mental health care in the United States has been an increasing priority during the last decade. States have enacted laws that allow for the delegation of psychiatric services to physician assistants in an effort to address the shortage and geographic maldistribution of mental health services and to more efficiently use the skills of psychiatrists. This statutory scheme recognizing physician assistants has been effective in broadening access to mental health care in various southern states. It also has, however, imposed certain risks and responsibilities upon psychiatrists who choose to supervise physician assistants. Understanding the regulatory responsibilities imposed upon supervising psychiatrists and anticipating the risks associated with supervising a physician assistant are important in avoiding grave financial consequences and the difficulties associated with litigation. Here, we review the statutory responsibilities imposed upon the psychiatrists supervising physician assistants across various southern states and to discuss the risk of vicarious liability of the psychiatrists for the actions of the physician assistants.

Studies show that where one lives affects an individual’s access to mental health services in multiple ways.1 In particular, populations in many southern states have a higher prevalence of mental illness but have less access to mental health care than populations in other regions of the United States.1 To address many populations’ limited access to mental health treatment, states have adopted laws through the years to enable physician extenders to provide mental health services under the supervision of a psychiatrist.2–5 Specifically, many states have allowed psychiatric services to be delegated to physician assistants.4

Although these laws have improved access to care, they also have imposed certain risks and responsibilities upon psychiatrists who choose to supervise physician assistants.6,7 As such, it is critical for supervising physicians to have a good understanding of the regulatory responsibilities that are associated with super- vising physician assistants to provide optimal and ethically based mental health care while avoiding the financial consequences that are associated with litigation.

This article reviews the legal responsibilities imposed upon the psychiatrist supervising physician assistants across various southern states and examines the risk of vicarious liability of the psychiatrist for the actions of the physician assistants. In overviewing these rules and regulations governing the supervision of physician assistants in some southern states, the duties and responsibilities of psychiatrists as physicians (hereinafter referred to as psychiatrists) when supervising physician assistants are closely summarized and considered.

PHYSICIANS’ LIABILITY FOR ACTS OF PHYSICIAN ASSISTANTS
In all states, physicians may be held liable for the negligence of a physician assistant. First, physicians can be held vicariously liable for the acts of physician assistants.6 Vicarious liability is when an individual or entity is held liable for the acts of another based on their legal relationship.6 The most common legal relationship from which vicarious liability can be imposed is the employment relationship.6 As such, whenever a physician assistant is employed by a physician and the physician assistant is acting within the scope of his employment, the physician may be held vicariously liable.6 At least one state supreme court has found that a supervising physician can be held vicariously liable for the acts of a non-employee based solely on the supervisory relationship.8 Indeed, the states discussed herein have promulgated statutes or regulations indicating that a supervising physician can be held vicariously liable based upon a supervisory relationship with a physician assistant.9–15

Second, physicians can be held directly liable for the acts of a physician assistant. As discussed by Gore, physicians have been found liable by South Carolina and Georgia federal courts for the acts of a physician assistant based on the theory of negligent supervision.6 Furthermore, according to Gore, based on a California federal court case and a Kansas supreme court case, direct liability against a physician for the acts of a physician assistant could be pursued under a theory of negligence in selecting the physician assistant.6 To avoid the financial consequences associated with litigation, then, care should be exercised in the hiring, training, and supervision of physician assistants in a practice.

REGULATIONS GOVERNING PHYSICIANS’ SUPERVISION OF PHYSICIAN ASSISTANTS
The supervision of physician assistants is heavily regulated by states’ respective medical boards. It is important to understand these responsibilities imposed upon the supervising physician because failure to do so can result in disciplinary action taken against the supervising physician’s license.14 Although the rules promulgated by each of the states discussed below are similar, there are small but important distinctions in the degree of super- vision required, procedural requirements, and which tasks can be delegated to physician assistants. These responsibilities are discussed below.

Kentucky
In Kentucky, psychiatrists may enter into supervision agreements with up to only four physician assistants and may not supervise more than four physician assistants at any one time.16 More specifically, supervising psychiatrists must “[m]aintain adequate, active, and continuous supervision of a physician assistant’s activities.” 17 “Supervision” is defined under Kentucky law as “overseeing the activities of and accepting of responsibility for the medical services rendered by a physician assistant.” 18 Continuous supervision does not necessarily necessitate the constant physical presence of the supervising psychiatrist, however.19 Physician assistants may practice in separate locations as long as the supervising psychiatrist is continuously available via telecommunication and the state medical board has approved a specific written request describing the services to be provided by the physician assistant in the separate location, the distance between the primary office and separate location, and the means and availability of continuous direct communication with the supervising psychiatrist.19,20

Supervising psychiatrists also must review and countersign at least 10% of the medical notes written by the physician assistant every 30 days.21 Every 2 years, the supervising psychiatrist must reevaluate the “reliability, accountability, and professional knowledge of a physician assistant” and, based on this evaluation, recommend approval or disapproval of the licensure renewal to the state medical board.22

Supervising psychiatrists are responsible for ensuring that physician assistants limit their practice to the scope described in the applications submitted to the state medical board and as permitted under Kentucky law.23 Even if a physician assistant is authorized to perform services or other acts pursuant to the application to the state medical board and Kentucky law, supervising psychiatrists may not require a physician assistant to perform that service or act if the physician assistant feels incapable of carrying it out safely and properly.24 Furthermore, supervising psychiatrists must prohibit physician assistants from prescribing controlled substances.25

Supervising psychiatrists also have certain notification duties. They must notify patients that they are being treated by a physician assistant by informing all of the patients who come in contact with a physician assistant of the physician assistant’s “status,” posting a notice in all physician assistant practice locations, and requiring physician assistants to wear identification clearly stating that they are a physician assistant.26 Furthermore, supervising psychiatrists must notify the state medical board within 3 business days if the supervising psychiatrist ceases to employ or supervise the physician assistant, or if the supervising psychiatrist believes that a physician assistant violated any law or regulation pertaining to the practice of physician assistants in Kentucky.27

Physician assistants may render services in healthcare facilities and hospitals only with the written permission of the facility’s governing body.28 Supervising psychiatrists must participate with the governing body of healthcare facilities in this process of credentialing the physician assistant.29

Arkansas
In Arkansas, there is no explicit limit on the number of physician assistants that a psychiatrist can supervise. Although a supervising psychiatrist’s supervision of a physician assistant must be continuous, the supervision does not necessarily require the physical presence of the supervising psychiatrist.30,31 The Arkansas legislature has defined “supervision” in this context as “overseeing the activities of and accepting responsibility for the medical services rendered by a physician assistant.” 30 Super- vising psychiatrists must be available for immediate telephone contact and must be able to reach the location where the physician assistant is practicing at any time that the physician assistant is rendering services to the public.30,32

Supervising psychiatrists must ensure that the physician assistants clearly identify themselves with badges or name tags bearing the words “physician assistant.” 33,34 Furthermore, physician assistants must maintain their license for inspection in their primary place of business.33

Georgia
In Georgia, a psychiatrist may serve as the primary super- vising psychiatrist for four physician assistants and may serve as the alternate supervising psychiatrist for any number of physician assistants.35,36 A psychiatrist may actively supervise only up to two physician assistants at one time except in certain situations.37,38 First, when a psychiatrist is practicing as a member in a group practice in which other members are primary supervising physicians, a supervising psychiatrist may actively supervise up to four physician assistants at one time.39,40 Second, a psychiatrist may supervise up to four physician assistants when the psychiatrist is acting as an alternate supervising psychiatrist and the physician assistants are working within the scope of practice of the alternate supervisor in one of the following settings: institutional, such as a hospital or clinic; while on call for a primary supervising physician or a group practice; or when otherwise approved by the state medical board to act as an alternate supervising physician.41,42

In Georgia, physician assistants are authorized to practice only in the places or facilities where their primary or alternate supervising psychiatrist regularly sees patients or while making house calls, making nursing facility visits, or serving as an ambulance attendant43–45; however, the physician assistant need not be in the presence of the supervising psychiatrist to provide medical services.46

When a primary supervising psychiatrist is unavailable, an alternate supervising psychiatrist may serve as the supervising psychiatrist.47,48 An unlimited number of alternate supervising psychiatrists may be used as long as an appropriate form is signed by the primary supervising psychiatrist and submitted to the state medical board.47,48 An alternate supervising psychiatrist must have a similar scope of practice and either an affiliation with the primary supervising psychiatrist’s medical practice or an established formal call agreement, however.49

If a supervising psychiatrist ceases to supervise a physician assistant, then he or she has a duty to give notice to the state medical board of the date that the relationship was terminated.50 Before the physician assistant can begin practicing again for any psychiatrist, including the previous supervising psychiatrist or an alternate supervising psychiatrist, a new application must be submitted to and approved by the state medical board.50

Furthermore, there are duties for supervising psychiatrists to notify patients that they are being treated by a physician assistant.51 Psychiatrists, clinics, or hospitals must post a notice in a prominent place that physician assistants are being used.51,52 Physician assistants must identify themselves as physician assistants, must wear name tags including the words “physician assistant,” and must be addressed as Mr, Mrs, Ms, or Miss.53

Alabama
Although there is no limit on the number of physician assistants that a psychiatrist supervises, there is a limit on the cumulative number of hours that the physician assistants supervised by one psychiatrist may work.54 The cumulative weekly work time for all physician assistants supervised by a supervising psychiatrist may not exceed 120 hours.54

Physician assistants may not engage in any independent or unsupervised practice.55,56 The supervising psychiatrist must at all times provide a direct, continuing, and close supervisory relationship with the physician assistant.57–60 Supervising psychiatrists must be available for direct communication via radio, telephone, or telecommunication.61 Furthermore, supervising psychiatrists must be available for consultation or referrals of patients from the physician assistant.62 Supervising psychiatrists, however, do not need to be onsite to supervise physician assistants.63 If a supervising psychiatrist chooses to supervise the physician assistant remotely, then the physician assistant and supervising psychiatrist are subject to additional requirements.64 If supervising a physician assistant remotely, a supervising psychiatrist must receive “daily status report[s]” in-person or via telephone or telecommunications on any complications or unusual problems encountered; visit the site 10% of the time during regular business hours that the physician assistant is present at the remote site, not less than quarterly, to observe and provide medical direction and consultation; review case histories of patients with unusual problems or complications with the physician assistant while visiting the remote site; and ensure that an appropriate psychiatrist will personally treat and diagnose patients requiring psychiatrist follow-up.64 The application also must specify the circumstances of the remote supervision and provide written verification of the psychiatrist’s availability for consultation, referral, and direct intervention after hours or in emergencies, if indicated.63

When the supervising psychiatrist is unavailable, the physician assistant may practice only to the extent that an alternate supervising physician can supervise the physician assistant.65,66 Alternate supervising psychiatrists must be qualified psychiatrists in the “same partnership, group, medical professional corporation or psychiatrist practice foundation or with whom the primary supervising psychiatrist shares call.” 65,66 Before serving as an alternate supervising psychiatrist, a letter must be submitted to the state medical board stating that the supervising psychiatrist “assumes all responsibility for the actions of the physician assistant during the temporary absence of the primary supervising physician”; is familiar with the current rules pertaining to physician assistants; is familiar with the physician assistant’s state medical board–approved job description; is accountable for adequately supervising the physician and the physician assistant; and approves the drug type, dosage, quantity, and number of refills of legend drugs that the physician assistant has been authorized to prescribe, if any.65–68

When a physician assistant’s employment is terminated, both the supervising psychiatrist and physician assistant both must notify the state medical board of the date of termination and the reason for termination.69,70

Mississippi
In Mississippi, psychiatrists may not supervise more than two physician assistants and may not supervise any physician assistants if the psychiatrist supervises two nurse practitioners.71 Although supervision of physician assistants must be continuous, the supervising psychiatrist need not be continuously physically present to supervise a physician assistant.13 In general, a physi- cian assistant’s practice needs to be confined to the primary office of the supervising psychiatrist of a facility within the same community as the supervising psychiatrist’s primary office; however, exceptions to this requirement may be granted by the state medical board on an individual basis provided that the locations of practice are set forth in the protocol.13 Supervising psychiatrists must provide an adequate means of communication with the physician assistant, which may include radio, telephone, fax, modem, or other telecommunication device.13 Physician assistants who have recently graduated or begun practicing in Mississippi may only practice with the onsite presence of a supervising physician for 120 days.13,72

Supervising psychiatrists also must conduct monthly reviews of at least 10% of the patients treated by physician assistants.13 While reviewing a physician assistant’s charts, supervising psychiatrists must “note the medical and family histories taken, results of any and all examinations and tests, all diagnoses, orders given, medications prescribed, and treatments rendered” and initial each of these sections of the chart.13 The state medical board may demand proof of compliance with this requirement.13

Physician assistants and supervising psychiatrists must immediately notify the state medical board in writing if the physician assistant is terminated; the supervising psychiatrist retires; the physician assistant or supervising psychiatrist withdraws from active practice; or there is any other change in employment, functions, or activities.73

Supervising psychiatrists are responsible for ensuring that physician assistants do not hold themselves out in a manner that would tend to mislead the public or patients or imply that the physician assistant is an independent practitioner.74 Further- more, physician assistants must wear a name tag, placard, or plate identifying themselves as physician assistants.74

CONCLUSIONS
We have covered the responsibilities of psychiatrists in supervising physician assistants and some of the risks associated with super- vising physician assistants in specific southern states. Although there are many commonalities between the physician assistant supervision rules across all of the southern states discussed, it is important that psychiatrists have state medical board approval and a comprehensive understanding of the rules in the state in which they supervise physician assistants.

There are two primary risks for psychiatrists supervising physician assistants: disciplinary action by their state medical board and potential liability for the negligence of the physician assistant. In supervising physician assistants, psychiatrists expose themselves to possible disciplinary actions by the state medical board. The key to avoiding these disciplinary actions is knowing the responsibilities of supervising psychiatrists, such as those discussed above, and fulfilling and documenting the fulfillment of these responsibilities. Psychiatrists also expose themselves to potential liability for any negligence of the physician assistants that they supervise, irrespective of the employment relationship between the psychiatrist and physician assistant.

These responsibilities apply to all physicians, not simply psychiatrists who are involved in the delivery of mental health services. The overall goal of improving better access to mental health services is ongoing and a worthwhile endeavor. Knowing and following the rules and regulations of the individual states will allow psychiatrists to assist the states in reaching their goals successfully.

REFERENCES
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6. Gore CL. A physician’s liability for mistakes of a physician assistant. J Leg Med 2000;21:125–142.
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8. Cox v M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240 (Tenn 2010).
9. Ala Code § 34-24-292(b).
10. Ark Code Ann § 17-105-107(b).
11. Ky Rev Stat Ann § 311.858(2).
12. Miss Code R § 30-026-2615(1.1).
13. Miss Code R § 30-026-2615(1.7).
14. Ark Code R § 060.00.001-24(9).
15. Ga Comp R & Regs 360-5-.11(7).
16. Ky Rev Stat Ann § 311.854(5).
17. Ky Rev Stat Ann § 311.856(9).
18. Ky Rev Stat Ann § 311.840(6).
19. Ky Rev Stat Ann § 311.860(4).
20. Ky Rev Stat Ann § 311.860(2).
21. Ky Rev Stat Ann § 311.856(10).
22. Ky Rev Stat Ann § 311.856(11).
23. Ky Rev Stat Ann § 311.856(1).
24. Ky Rev Stat Ann § 311.856(8).
25. Ky Rev Stat Ann § 311.856(2).
26. Ky Rev Stat Ann § 311.856(3-5).
27. Ky Rev Stat Ann § 311.856(12).
28. Ky Rev Stat Ann § 311.858(7).
29. Ky Rev Stat Ann § 311.856(7).
30. Ark Code Ann § 17-105-101(3).
31. Ark Code Ann § 17-105-109(a).
32. Ark Code R § 060.00.001-24(6).
33. Ark Code Ann § 17-105-116.
34. Ark Code R § 060.00.001-24(8)(B).
35. Ga Code Ann § 43-34-103(b)(1).
36. Ga Comp R & Regs 360-5-.05(4).
37. Ga Code Ann § 43-34-103(b)(2).
38. Ga Comp R & Regs 360-5-.05(5).
39. Ga Code Ann § 43-34-103(b)(2)(A).
40. Ga Comp R & Regs 360-5-.05(5)(a).
41. Ga Code Ann § 43-34-103(b)(2)(B).
42. Ga Comp R & Regs 360-5-.05(5)(b).
43. Ga Code Ann § 43-34-103(d).
44. Ga Comp R & Regs 360-5-.11(1).
45. Ga Comp R & Regs 360-5-.11(3).
46. Ga Comp R & Regs 360-5-.11(2).
47. Ga Code Ann § 43-34-103(b)(3).
48. Ga Comp R & Regs 360-5-.03(3)(b)(1).
49. Ga Comp R & Regs 360-5-.03(3)(b)(2).
50. Ga Comp R & Regs 360-5-.03(9).
51. Ga Comp R & Regs 360-5-.11(5).
52. Ga Code Ann § 43-34-106.
53. Ga Comp R & Regs 360-5-.11(6).
54. Ala Admin Code r 540-X-7-.26(2).
55. Ala Admin Code r 540-X-7-.23(2).
56. Ala Admin Code r 540-X-7-.53(5) (applying this rule to the supervision of anesthesiology assistants).
57. Ala Admin Code r 540-X-7-.23(1).
58. Ala Admin Code r 540-X-7-.25(1).
59. Ala Admin Code r 540-X-7-.53(1) (applying this requirement to the supervision of anesthesiology assistants).
60. Ala Admin Code r 540-X-7-.55(1) (applying this requirement to the supervision of anesthesiology assistants).
61. Ala Admin Code r 540-X-7-.23(3).
62. Ala Admin Code r 540-X-7-.23(4).
63. Ala Admin Code r 540-X-7-.23(6).
64. Ala Admin Code r 540-X-7-.23(8).
65. Ala Admin Code r 540-X-7-.24(1).
66. Ala Admin Code r 540-X-7-.54(1) (applying rule to anesthesiology assistants).
67. Ala Admin Code r 540-X-7-.24(2).
68. Ala Admin Code r 540-X-7-.54(2) (applying rule to anesthesiology assistants).
69. Ala Admin Code r 540-X-7-.20.
70. Ala Admin Code r 540-X-7-.50 (applying notification requirement to anesthesiology assistants).
71. Miss Code R § 30-026-2615(1.8).
72. Miss. Code Ann. § 73-26-3(6).
73. Miss Code R § 30-026-2615(1.9).
74. Miss Code R § 30-026-2615(1.12).