Must a Name Mean Something? New Law Untethers Physician Assistants from Physicians
By Chelsea L. Gulinson, JD, Associate Attorney and Robert Milligan, JD, Shareholder at Milligan Lawless, PC
Digital - July 2023
On April 17, 2023, Governor Katie Hobbs signed HB2043 into law, with bipartisan support from the Arizona Legislature. Among other things, the law will expand the scope of practice for Physician Assistants (“PAs”) who have more than eight thousand documented hours of clinical practice, and loosen the physician supervision requirements for those PAs; it also will allow PAs to bill and receive payment for services they provide. The law goes into effect on January 1, 2024.
As is always the case with laws affecting professionals’ scope of practice, opinions are divided on whether the law is a step forward or a step down a slippery slope. Following below is a brief summary of the law, followed by some of the opinions offered by those on opposite sides of the issue, and a comment on terminology.
The Law
HB2043 expands a PA’s scope of practice. The law provides that a PA’s scope of practice includes any legal medical service for which the PA has been prepared by education, training, and experience, and which the PA is competent to perform. It adds a number of medical services to the list of services that a PA may provide, including interpreting diagnostic studies; providing counseling and education services; writing orders; obtaining informed consent; and delegating tasks to other personnel.
The feature of the law that appears to have generated the most attention and conflict is the provision that eliminates the physician supervision requirement for PAs who have had at least 8,000 hours of clinical practice. Those PAs who meet the 8,000 hour requirement, and who elect to practice without physician supervision, must “collaborate with, consult with, or refer to the appropriate health care professional,” as indicated by the patient’s condition and the PA’s education, training, and experience.
Those few words appear to give PAs nearly unlimited independence from physicians. For starters, “collaborate” and “consult with” suggest that the PA must have some level of interaction with another provider. However, giving PAs the option to simply “refer to” another provider suggests that the PA may practice completely independently, making referrals only when the PA deems the referral to be appropriate; this seems no different from what an internist might do when he or she deems it appropriate to refer a patient to a cardiologist.
Also, note that the requirement is to consult with, collaborate with, or refer to “the appropriate health care professional.” Nothing in the law dictates that the recipient of the referral must be a physician. Thus, it appears that a PA may collaborate with, consult with, or refer to, e.g, a nurse practitioner, another PA, or any other licensed health care professional. The term “health care professional” is not defined in HB2043. Another Arizona statute defines a similar term, “health professional,” to include podiatrists, chiropractors, dentists, naturopaths, and dispensing opticians.
The new law provides some relief for physicians who supervise PAs. Under current law, a physician who supervises a PA must “[a]ccept responsibility for all tasks and duties the physician delegates to the physician assistant.” The new law eliminates that obligation, although a physician would still face administrative or judicial liability for negligent supervision and similar claims.
The Proponents
Proponents of the law claim that HB2043 will modernize PA-related laws and improve patient access to care. For example, the American Academy of Physician Associates maintains that laws like HB2043 allow PAs to “practice to the fullest extent of their education, training, and experience.” Closer to home, the Arizona State Association of Physician Assistants (“ASAPA”) believes that HB2043 will increase access to health care, particularly in rural areas; decrease health care costs; allow employers to determine what is best for the practice and its patients; increase job opportunities for PAs; and strengthen the health care team by removing burdensome administrative constraints. ASAPA President Melinda Rawcliffe, MPAS, DMSc, PA-C contends that the new law will “help to address our state’s growing needs for access to quality healthcare, especially in rural and underserved communities.” In its press release, the ASAPA states that the law will “remove the legal tether between a PA and another healthcare provider.”
The Opponents
Opponents of laws like HB2043 insist that legislatures are blurring the lines between physicians and PAs. Referring to efforts to attenuate the bond between physician and other providers, the AMA says:
“It has become a rite of spring: Every year, bills seeking to inappropriately expand scope of practice for physician assistants (PAs), nurse practitioners and other nonphysician health professionals are introduced in state legislatures around the country.”
In advocating for a physician-led practice of medicine, the AMA states that “differences in training and education between physicians and nonphysicians” weigh against expansion of the scope of practice for PAs and other non-physician providers.
Nomenclature
Certainly, reasonable minds can differ about whether and to what extent the expansion of PA scope of practice will improve patient care. Words matter, however, and from a terminology standpoint it is difficult to see how a provider who is not assisting a physician – and who in fact may have absolutely no association with a physician – can rightly be called a Physician Assistant. So, by eliminating the need for a link between physicians and Physician Assistants, HB2043 raises the question Alice posed to Humpty Dumpty: “Must a name mean something?”
If the legislature is going to sever the legal tether between physicians and PAs, perhaps it should be obligated to sever the nomenclature tether, as well, by coming up with a new name for this new type of provider, i.e., Physician Assistants who do not assist physicians. Otherwise, the continuing use of the term Physician Assistant, for providers who may have no association with a physician, seems likely to mislead patients into believing that the care they are receiving is being supervised in some fashion by a physician.
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About the Authors:
Chelsea L. Gulinson, JD, is a litigation and health care associate at Milligan Lawless, P.C. As an associate, Chelsea’s practice focuses on obtaining favorable and cost-effective solutions for clients engaged in complex commercial and civil litigation. She also focuses her practicing on representing business entities and healthcare organizations, physicians, and other providers in a wide range of matters, including complex commercial litigation, compliance and regulatory investigations, healthcare fraud and abuse, and employment matters in court and arbitration proceedings. Prior to joining the firm, Chelsea was a Research Scholar at the Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, and Staff Attorney for the Network for Public Health Law, Western Region Office.
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Robert J. Milligan, JD, is Shareholder at Milligan Lawless, PC and specializes in healthcare law. Mr. Milligan limits his practice to the representation of individuals and companies in the health care and life sciences industry. In addition to his law degree, Mr. Milligan has an LL.M. in Biotechnology and Genomics.