Download A Guide for APN Practice in Texas

A Guide for APRN Practice in Texas
Authors
Lynda Freed Woolbert, MSN, RN, CPNP
Brenda Ziegler, MSN, RN, FNP
Contributing Editor
Lisa G. Taylor, Ph.D., RN, FNP
Contributors
Mary Barnett, RN, CNM
Belinda Swearingen, MSN, RN, FNP
Christine A. Boodley,
FNP-BC, PhD, FAANP
Michael Van Doren, MSN, RN
Mary C. Brucker, CNM, DNSc,
FACNM
Heather Vasek, Director of Public
Policy for the Texas Association for
Home Care
Anthony Diggs, MSCJ
BON Director of Enforcement
James R. Walker, DNP, CRNA
Melanie Dossey, RN, CNM
Thomas Evans, CRNA
Jean Gisler, MSN, RN, FNP
Kenneth Lowrance, MS, RN, CS,
FNP-C
Carol Marshall, RN
BON Practice Consultant
Kenneth McDaniel, Texas
Department of Insurance
Sister Angela Murdaugh, CNM
Kori Pienovi, MSN, CNM
Mary Pat Rapp, DSN, RN, GNP
Edward Quillin, JD, Quillin Law Firm,
P.C.
Juan F. Quintana, MHS, CRNA
Jim Willmann, JD, Texas Nurses
Association, General Counsel and
Director, Governmental Affairs
Eleanor Woods, PhD, RN, CNS,
FNP-C
Jolene Zych, MS, RNC, WHNP
The purpose of this manual is to provide advanced practice registered nurses practicing
in Texas with the necessary resources to guide their practice. It is not to be used as a
substitute for legal, accounting or insurance advice. Please consult with those
professionals as needed.
Proceeds from sales will go to the following non-profit organizations benefiting Texas
advanced practice registered nurses.
Coalition for Nurses in Advanced Practice
Texas Nurse Practitioners
For more information about obtaining copies of this APRN Guide contact:
Coalition for Nurses in
Advanced Practice
Jan Allen
CNAP Administrative Director
P O Box 150218,
Austin, TX 78715-0218
512.312.2134 phone/fax
512.576.5719 cell
www.cnaptexas.org
Texas Nurse Practitioners
500 N. Capital of Texas Highway
Building 5, Suite 210
Austin, Texas 78746
512-275-7153 office
512-275-7139 fax
[email protected]
www.texasnp.org
For questions regarding any aspect of APRN Practice in Texas contact:
Lynda Woolbert, Executive Director
Coalition for Nurses in Advanced Practice
2229 River Valley Drive
West Columbia, Texas 77486
979-345-5974 office
512-750-3747 mobile
979-345-3496 fax
[email protected]
A Guide for APRN Practice in Texas
3rd Edition
September 2009
Copyright © 2009 Coalition for Nurses in Advanced Practice and Texas Nurse
Practitioners. All rights reserved.
Limited distribution rights are granted to multi-user purchasers only.
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iii
About the Authors
Lynda Woolbert, MSN, RN, CPNP-PC
Lynda is a Pediatric Nurse Practitioner and Executive Director of the Coalition for
Nurses in Advanced Practice, an organization focused on improving the legislative and
regulatory environment for advanced practice registered nurses in Texas. Lynda is an
expert on the laws and rules that govern APRNs’ practices. In that capacity, she
consults with hospitals, private practices and businesses about credentialing, privileging
and employing advanced practice registered nurses. Her varied career includes faculty
positions in four nursing programs and two medical schools, and starting an NP-run
pediatric clinic. In 2004, she served on Governor Perry’s Medicaid Reform Task Force
and in the DSHS Hospital Licensing Rule Revision Workgroup. She is currently an
adjunct faculty member for the UTMB School of Nursing in Galveston. She also serves
on the Advanced Practice Advisory Committee for the Texas Board of Nursing and the
BON’s Licensure, Eligibility and Disciplinary Task Force.
Contact Lynda: [email protected]
Brenda Ziegler, MSN, MBA, RN, FNP-BC
Brenda is a Family Nurse Practitioner who earned her Master of Science in Nursing in
1996 from Abilene Christian University at the Patty Hanks Shelton School of Nursing.
She earned a Master of Business Administration in 2008 from Texas Woman's
University. She is currently practicing as a nurse practitioner for Shaw Medical Center in
Burleson, Texas. She was Executive Director of Texas Nurse Practitioners from 20032007.
As a nursing instructor for many years, Brenda's passion is to provide a wide array of
learning opportunities for APRNs so they can maintain a successful practice in Texas.
Since nursing continues to evolve, learning is never-ending.
Contact Brenda: [email protected]
Lisa G. Taylor, PhD, RN, CNS, FNP
Dr. Taylor is a Family Nurse Practitioner as well as a Clinical Nurse Specialist in
Community Health. She is an entrepreneur, having owned and operated her own
certified rural health clinic and has been the Corporate Clinical Director for retail based
health centers in Texas and Arkansas. Dr. Taylor has expertise in Family Practice as
well as Occupational Health. Currently she is the Medical Director for American Health
& Occupational Solutions and teaches part-time at the University of Texas in Arlington
in their Graduate Program. Dr. Taylor also represents Advanced Practice Nursing on
the Texas Center for Nursing Workforce Studies Advisory Committee.
Contact Lisa: [email protected]
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A Guide for APRN Practice in Texas
Table of Contents
Chapter 1: Registered Nurse Licensure with APRN Authorization ………
Page
…1
1.1 Definition of Advanced practice registered nurse ……………………………
1.2 Registered Nurse Licensure …………………………………………………….
1.3 Advanced Practice Nursing Authorization/APRN Licensure …………………
1.4 Standards of APRN Practice …………………………………………………….
1.5 Scope of Practice ……………………………………………………………….
…. 2
…. 3
… 9
… 18
… 19
Chapter 2: Foundations of APRN Practice: Governing Laws, Rules & Agencies
… 23
2.1 Structure of Federal and State Governments …………………………………
2.2 Development of Laws …………………………………………………………...
2.3 What APRNs Should Know about the Organization of Texas Law …………
2.4 What APRNs Should Know about the Nursing Practice Act ………………..
2.5 What APRNs Should Know about the Board of Nursing ……………………
2.6 What APRNs Should Know About Texas Rules and Regulations …………
2.7 BON Rules, Guidelines & Position Statements Referencing APRNs ………
2.8 The Texas Register ……………………………………………………………..
2.9 TNA's Annotated Guide to the Nursing Practice Act and BON Rules……….
2.10 Other Texas Agencies, Statutes and Rules Impacting APRN Practice……
2.11 What APRNs Should Know about Federal Law ……………………..............
Chapter 3: Foundations of APRN Practice: Professional Organizations
3.1 Professional, Credentialing and Accreditation Organizations………………...
3.2 National APRN Professional Organizations ………………………………….
3.3 Texas State and Regional APRN Professional Organizations …………..…
3.4 Local & Area APRN Professional Organizations ……………………………..
3.5 Texas RN/APN PAC ………………………………………………………..……
3.6 Free APRN Publications …………………………………………………………
3.7 Other Sources for Continuing Education & Information ………………………
… 24
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Chapter 4: Prescriptive Authority ………………………………………………... … 62
4.1 The History of APRN Prescriptive Authority in Texas ……………………….
4.2 Definitions ………………………………………………………………………..
4.3 Obtaining & Renewing a BON Prescriptive Authority Number ……………….
4.4 Obtaining & Renewing DPS and DEA Numbers……………………………….
4.5 Overview of APRN Prescriptive Authority in Texas…………………………..
4.6 Limits on Prescriptive Authority for APRNs……………………………………..
4.7 Specific Information on Sites in Which APRNs Prescribe…………………..
4.8 Alternate Delegating Physicians ………………………………………………..
4.9 Not All Sites Have a Physician/APRN Delegation Ratio .. …………………..
4.10 Responsibilities of APRNs with Prescriptive Authority………………………
4.11 Responsibilities of Physicians Delegating Prescriptive Authority …………..
4.12 Waivers of Prescriptive Delegation Requirements ………………………….
4.13 Must a Delegating Physician & APRN Have the Same Specialty? ……….
4.14 Physician Liability When Delegating Prescriptive Authority ………………..
4.15 Information Required on a Prescription Signed By an APRN ……………..
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4.16 Preventing Generic Substitution of a Drug …………………………………..
4.17 Calling Prescriptions to the Pharmacy for the APRN ………………………
4.18 Pharmacists Must Include the APRN's Name on the Rx Label ……………
4.19 Signing for and Distributing Drug Samples ………………………………….
4.20 May a Physician Pre-Sign a Prescription for a Schedule II Drug? ………..
4.21 Content that Must Be Included in a Practice Agreement Protocol ..............
4.22 Sample Practice Agreement Protocol …………………………………………
Sample Forms ……………………………………………………………..
TMB Waiver Requet Application ………………………-………………..
…100
…100
…101
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…103
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…124
... 128
Chapter 5: Practice Issues for NPs and CNSs …………………………………
…134
5.1 The CNS and NP Roles ………………………………………………………….
5.2 Scope of Practice and Competence …………………………………………….
5.3 APRN’s Use of Alternative & Complementory Terapies …………………….
5.4 Certain Functions that Require Additional Training …………………………..
5.5 APRNs Delegating to Unlicensed Personnel ………………………………….
5.6 RNs and LVNs May Accept Orders From APRNs …………………………….
5.7 Health Care Services: What May NPs and CNSs Order? ……………………
5.8 Forms and Certifications: What May APRNs Sign? ………………………….
5.9 The Role of NPs and CNSs in Texas Workers’ Compensation ……..............
5.10 The Role of NPs and CNSs in Nursing Facilities …………………………….
5.11 Employment Issues and Contracts …………………………………………….
5.12 APRN-Owned Practices ………………………………………………………..
5.13 Credentialing & Privileging Basics ……………………………………………..
5.14 Comparisons of State Scopes of Practice for NPs ………………………….
5.15 Additional Resources for NPs and CNSs …………………………………....
BON letter confirm ordering diagnostic tests in APRN’s scope …………………
…136
…140
…143
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…148
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Chapter 6: Clinical Practice Issues for CRNAs ………………………………... …180
6.1 The CRNA Role …………………………………………………………............
6.2 Scope of Practice and Competence………………………………………….
6.3 Types of Anesthesia Providers …………………………………………………
6.4 Aspects of CRNA Practice that Must Be Delegated …………………………
6.5 Doctors that May Order Anesthesia by a CRNA ……………………………..
6.6 The Settings in Which CRNAs Practice ………………………………………
6.7 Including New Procedures in a CRNA’s Scope of Practice …………………
6.8 RNs and LVNs May Accept Orders from APRNs ……………………………
6.9 Orders Written by CRNAs ……………………………………………………...
6.10 CRNAs May Order Controlled Substances Without DEA Registration …..
6.11 The Role of Other RNs in Administering Certain Anesthetic Agents……...
6.12 Credentialing, Privileging & LIP Status of CRNAs ………………………….
6.13 Anesthesia Department Requirements ………………………………………
6.14 Anesthesia Care Team Model and the TEFRA 7 ……………………………
6.15 Documenting the Standard of Care in Anesthesia ………………………….
6.16 Reimbursement by Certain Public Healthcare Programs …………………..
6.17 The Opt-Out ……………………………………………………………………
6.18 Employment Issues and Contracts ……………………………………………
6.19 Responding to Concerns about Vicarious Liability ………………………….
6.20 CRNA-Owned Practices ……………………………………………………….
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Chapter 7: Practice Issues for CNMs ……………………………………………. …209
7.1 CNM Role and Profession: History of CNM Role in the United States ……...
7.2 Special Issues for Some CNMs on APRN Authorization ……………………
7.3 Scopte of Practice and Competence …………………………………..……..
7.4 Certain Functions that Require Additional Training By Texas Law …………
7.5 Medical Abortion must be Provided by a Physician in Texas……….............
7.6 APRNs Delegating to Unlicensed Personnel ……………………………..…
7.7 RNs and LVNs May Accept Orders from APRNs …………………………...
7.8 Orders Written by CNMs …………………………………………………….....
7.9 Forms and Certifications: What May CNMs Sign? ………………………….
7.10 Vital Statistic Filings Required by Law ……………………………………....
7.11 Education & Services CNMs Must Provide in Texas ……………………….
7.12 Public Health Surveillance and Reporting Requirements…………………
7.13 Providing Care for Adolescents ……………………………………………….
7.14 Out-of-Hospital Births …………………………………………………………..
7.15 Credentialing & Privileging ……………………………………………………
7.16 Reimbursement by Certain Public Healthcare Programs …………………..
7.17 Community Health Programs ………………………………………………….
7.18 Employment Issues and Contracts ……………………………………………
7.19 Responding to Concerns about Vicarious Liability ………………………….
7.20 CNM-Owned Practices …………………………………………………………
7.21 Additional Resources for CNMs ……………………………………………….
Comparison Chart of CNMs & Licensed Midwives ……………………….............
Chapter 8: BON Disciplinary Process, TPAPRN & Peer Review ……………
…210
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8.1 Overview of BON Disciplinary & Enforcement Functions ……………………
8.2 Behavior the May Result in Disciplinary Action……………………………….
8.3 The Complaint…………………………………………………………………….
8.4 Reporting to Peer Review or Claiming Safe Harbor………………………….
8.5 What to Do If Under Investigation……………………………………………….
8.6 BON Complaint Investigation Process………………………………………….
8.7 Informal Resolution / Settlement……………………………………………….
8.8 Formal Disciplinary / Settlement Process …………………………………….
8.9 Nurse’s Rights & Additional Disciplinary Process Rules……………………..
8.10 Disciplinary Actions / Assessment of Fines & Other Costs………………….
8.11 BON Options on Disciplinary Action ………………………………………….
8.12 Affect of APRN Licensure on the Disciplinary Process………………………
8.13 BON’s Authority to Require Certain Evaluations …………………………….
8.14 Intemperate Use & Peer Assistance / TPAPN……………………………..
8.15 Reinstating a Nursing License & APRN Authorization ……………………..
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Chapter 9: Liability, Tort Reform, Malpractice and Liability Insurance …….
…277
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…294
9.1 Laws Governing Torts …………………………………………………………...
9.2 When a Claim Occurs ……………………………………………………………
9.3 Malpractice and Tort Reform ……………………………………………………
9.4 Professional Liability Insurance …………………………………………………
9.5 Liability Prevention / Risk Management ………………………………………..
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Chapter 10: National Practitioner and Health Care Integrity & Protection
Data Banks …………………………………………………………..
10.1 The National Practitioner Data Bank (NPDB) ……………………………….
10.2 Healthcare Integrity and Protective Data Bank (HIPDB) ……………………
10.3 General NPDB-HIPDB Information ……………………………………………
10.4 Glossary ………………………………………………………………………….
10.5 Contacting The Data Banks …………………………………………………….
References: Endnotes ………………………………………………………....
....278
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NOTES ON REFERENCES
Hyperlinks: This manual contains many links in the text that take the
reader directly to the reference material. Hyperlinks are noted by underlined
text.
Footnotes: References that the reader may need to be readily accessible
is footnoted at the bottom of the page and noted by small Roman numerals.
Endnotes: Most references appear at the end of the manual and are
divided by chapter and noted by Arabic numerals.
Access Date: All Internet links and references were last accessed on or after
August 1, 2009
CHANGES IN THE 3RD EDITION
Edited text, including changing APN to APRN, as appropriate. Corrected minor errors, updated
and added hyperlinks, and modified some examples throughout the manual.
Chapter 1
Updated information to reflect BON rule changes regardining
1) transition from APN authorization to APRN licensure
2) end of provisional authorization and changes in Interim Approval
3) replacing rules on continuing education with continuing competency, giving an
alternative to showing evidence of 20 hours of continuing education.
Chapter 2
Corrected a few inaccurate citations in the tables.
Added references to
1) pain management clinics in Table 2.1
2) references for Rural Health and Federally Qualified Health Centers in Tables 2.5 and
2.10.
Chapter 3
Changed National Conference of Gerontological Nurse Practitioners to Gerontological
Advanced Practice Nurses Association
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Chapter 4
Updated information and substantially modified the sample Practice Agreement Protocol to
reflect:
1) passage of SB 532, including new draft medical and nursing board rules
2) passage of 1984
3) reclassification of carisoprodol (Soma) as a Schedule IV controlled substance
Added a summary of the 81st Legislative Session
Added information on pain clinics that must be registered and regulated by the TMB to the
steps to prescribing controlled substance in Section 4.4
Chapter 5
Updated sections on
1) first assisting at surgery,
2) training for radiologic procedures,
3) restraint and seclusion, and
4) signing medical verifications for disabled parking placards.
Added new references regarding skilled nursing facilities versus nursing facilities.
Added sections on:
1) complementaty therapies
2) ordering diabetic supplies in the Medicaid Program,
3) signing forms in the WIC program, and
4) pain management clinics that must be owned by physicians.
Chapter 6
Updated section on ambulatory surgical centers to reflect new rules adopted on June 18,
2009.
Added new Section on Pain Management Clinics.
Update references in the Business Code.
Chapter 7
Added information on:
1) rule change regarding STD reporting information
2) consent for HIV testing.
Changed some information on requirements to perform limited sonography
Added resources for employment contracts and reimbursement specific to CNMs.
Chapter 8
Added information related to two bills passed in 2009:
1) SB 1415 authorized alternate actions the BON can take in disciplinary matters and
2) HB 3961 related to BON’s authority to require a nurse to submit to evaluations.
Chapter 9
Added information to help APRNs select the appropriate amount of coverage limits when
purchasing malpractice insurance.
Added information on TMLT’s resources for risk management.
Chapter 10 – No substantive change
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Chapter 1
Texas Registered Nurse Licensure with
Advanced Practice Authorization
Key Points
 Rules adopted by the Board of Nursing (BON) changed APN authorization to APRN
licensure.
 “Advanced Practice Registered Nurse” or “APRN” is a collective term that describes the four
categories of advanced practice registered nurses recognized in Texas, e.g., nurse
practitioner, nurse-midwife, nurse anesthetist, and clinical nurse specialist.
 Advanced practice registered nurse” is synonomous with “advanced practice nurse” and
“advanced nurse practitioner.”
 According to current BON rules on titling, APRN is not a designated title and is not to be
used as part of the APRN’s credentials. Use “RN” to denote licensure and the APRN
population-focus and role as the designated advanced practice title, e.g., PNP, FNP, CRNA,
ACNS, CNM.
 APRNs should stay alert for rule changes as other rules are updated to reflect APRN
licensure. The BON could change the titling rule and that would affect the way APRNs sign
their names and identify themselves.
 RNs with advanced practice authorization from the BON must comply with the same rules
applicable to other RNs, in addition to requirements specific to APRNs.
 The Nurse Licensure Compact for RNs and LPNs/LVNs allow APRNs from other compact
party states to practice as an RN on their multistate privilege, but to practice as an APRN,
they must apply for and receive authorization to practice in the advanced practice role and
population-focus area from the BON. Texas adopted the APRN Compact, but
implementation of the compact is not likely until late 2011.
 APRNs must renew their APRN status and prescriptive authority authorization at the same
time they renew the RN license.
 APRNs who were authorized based upon national certification must maintain that national
certification.
 APRNs lose the right to practice as an APRN if they allow their RN license or APRN license
to lapse.
 Interim APRN Approval allows APRNs to practice while the Board of Nursing obtains all the
information needed to grant an unrestricted APRN license.
 An APRN graduate practicing on Interim Approval who fails the national certifying exam
must stop practicing and notify the BON. Then, once the APRN passes the national
certification exam, the APRN must re-apply to the BON for APRN licensure and meet all
requirements in effect at the time of reapplication.
 The BON establishes standards of practice that all APRNs must uphold.
A Guide for APRN Practice in Texas
1
 Each APRN is accountable for his/her practice, and is responsible for practicing within his or
her scope of practice and competence.
Introduction
Advanced practice registered nurses have a long, intricate history. The first nurse anesthesia
educational programs were established over 110 years ago. Nurse-midwives began their
educational history in the U.S. in the 1920's. Additional advanced nursing roles, i.e., clinical
nurse specialist and nurse practitioner evolved within the past 50 years. Over the past two
decades, advanced practice nursing has experienced rapid growth and expanding privileges.
Today, there are over 200,000 APRNs in the United States with over 10,000 residing in Texas.
This increase has been due in part, to the need for more knowledgeable and effective health
care providers. Numerous studies have shown that APRNs provide high quality care.
In Texas, advanced practice registered nurse (APRN) is a collective term that encompasses the
four advanced practice nursing roles recognized by the Texas Board of Nursing (BON). The four
APRN roles include nurse-midwives, nurse anesthetists, clinical nurse specialists and nurse
practitioners. There are distinct differences between the educational and clinical practice
requirements of the four types of APRNs. An APRN practices within a particular scope of
practice that allows him/her to perform health care that is beyond the scope of RNs who are not
recognized as APRNs.
This manual details the laws and regulations that govern APRN practices and will discuss some
of the basic issues that challenge APRNs in daily practice. Chapter 1 focuses on the legal
requirements that must be met in order to obtain and maintain licenses to practice as an RN and
APRN in Texas.
1.1 Definition of Advanced Practice Nurse / Advanced
Practice Registered Nurse
The term that encompasses the four advanced practice nursing roles in Texas is currently in
transition. Both “advanced practice nurse” and “advanced practice registered nurse” are used in
Texas laws and rules. However, the official term adopted by the Texas Board of Nursing (BON)
is now advanced practice registered nurse (APRN). Over time, all the statutes and rules will be
revised to reflect that change. Texas statutes currently include the following definitions.
"Advanced practice nurse" is defined in the Nursing Practice Act (Chapter 301, Texas
Occupations Code) as “A registered nurse approved by the board to practice as an advanced
practice nurse on the basis of completion of an advanced educational program. The term
includes a nurse practitioner, nurse midwife, nurse anesthetist, and clinical nurse specialist. The
term is synonymous with "advanced nurse practitioner”.i
Chapter 305, Texas Occupations Code, (NCSBN Advanced Practice Registered Nurse
Compact) was incorporated into Texas law in 2007. It uses the terms, “advanced practice
registered nurse” and “APRN”. In 2008, the BON adopted the first rules that used the new
terminology, and new graduates of advanced practice programs now complete the “Advanced
Practice Registered Nurse (APRN) Application.” Therefore, the authors retitled the third edition
of this guide accordingly and are now using APRN throughout the manual.
i
Nusung Practice Act, §301.152(a), Texas Occupations Code.
A Guide for APRN Practice in Texas
2
The Nursing Practice Act directs the BON to adopt rules to establish the practice requirements
that APRNs in Texas must meet for authorization to practice as an APRN, with or without
prescriptive authority. Therefore, the state agency with authority to regulate the practice of
APRNs in Texas is the Board of Nursing. The BON offers more details in its definition of
advanced practice registered nurse in BON Rules.
A registered nurse approved by the board to practice as an advanced practice registered
nurse based on completing an advanced educational program acceptable to the board.
The term includes a nurse practitioner, nurse-midwife, nurse anesthetist, and a clinical
nurse specialist. The advanced practice registered nurse is prepared to practice in an
expanded role to provide health care to individuals, families, and/or groups in a variety of
settings including but not limited to homes, hospitals, institutions, offices, industry,
schools, community agencies, public and private clinics, and private practice. The
advanced practice registered nurse acts independently and/or in collaboration with other
health care professionals in the delivery of health care services.ii
In the first sentence, the definition includes the requirement to be a registered nurse. In Texas,
as in every other state, a person may not practice, or offer to practice, nursing unless the person
is licensed. Once the advanced practice educational and practice requirements are met, the
Board of Nursing may authorize the registered nurse to practice in a specific advanced practice
role and population-focus area that permits the APRN to provide care to a population of patients
within an expanded scope of practice. Most services provided by APRNs are not dependent on
practicing with a physician. However, providing certain medical aspects of care must be in
collaboration with a physician as specified through a general delegation protocol. Medical
aspects of care and requirements for the protocol are explained in more detail in Section 1.4
and Chapter 4).
Each step of the process to become an APRN in Texas is described in detail in the following
sections, 1.2 -- 1.3.
1.2 Registered Nurse Licensure
The Board of Nursing is responsible for regulating the practice of all nurses in Texas. This
includes licensed vocational nurses and registered nurses (including APRNs).
A person must meet all of the following requirements in order to be eligible for a license as a
Registered Nurse in Texas.
 Demonstrate good professional character
 Successfully complete an approved program of professional nursing education
 Successfully pass an examination approved by the BON that determines the fitness of the
applicant to practice professional nursing (i.e. the NCLEX-RN)
 Effective September 1, 2008, pass the jurisprudence exam approved by the Boardiii
Good Professional Character
The Board of Nursing defines “good professional character” as:
the integrated pattern of personal, academic and occupational behaviors which in the
judgement of the Board, indicates that an individual is able to consistently conform his or
ii
iii
BON Rules, 22 TAC §221.1(3). The BON is expected to amend this definition in 2010.
BON Rules, 22 TAC §217.2, §217.4., and §217.5.
A Guide for APRN Practice in Texas
3
her conduct to the requirements of the Nursing Practice Act, the Board’s rules and
regulations, and generally accepted standards of nursing practice including, but not
limited to, behaviors indicating honesty, accountability, trustworthiness, reliability, and
integrity.iv
Because nurses practice in diverse settings and interact with individuals (clients, their families,
and significant others) who are in vulnerable situations, to the extent possible, the BON ensures
that the RN/APRN will consistently act in the best interests of these individuals. The BON
believes “A person's past and ongoing history regarding certain mental and physical health
conditions, chemical dependency, and/or criminal background are all relevant to the practice of
nursing because a nurse must be able to demonstrate both "good professional character" as
well as "current sobriety and fitness to practice." v
To further the BON’s ability to assure that nurses are of good professional character, the 2003
Texas Legislature amended the Nursing Practice Act to allow the BON to conduct criminal
history background checks.vi At least once during the license renewal period between
September 2005 and September 2015, the BON must obtain a criminal background check on
every nurse licensed by the BON. Each month, the BON randomly selects nurses from all levels
of practice for this background check, and notifies them in writing with instructions on obtaining
and submitting fingerprints.
RN Licensure by Endorsement
For those who are moving to Texas from another state or foreign country, the BON may issue a
license to practice as a registered nurse by endorsement. This allows the nurse to be licensed
in Texas without re-taking the examination. The applicant must hold a license as a registered
nurse in the state or foreign country in which he/she resided and meet a similar degree of
fitness to practice professional nursing.vii
The Board of Nursing offers a relatively simple registered nurse licensure application process.
The application may be completed and submitted online, www.bon.state.tx.us, or the form can
be downloaded and sent via mail. Online registration is available for all applicants unless one of
the following is true.







Does not have a valid US Social Security Number
Has not graduated from an approved professional nursing program
Has not taken and obtained a passing score on one of the following examinations:
State Board Test Pool Examination - minimum score of 350, or passed National Council
Licensure Examination for Registered Nurses
Does not have licensure in another jurisdiction that has requirements equivalent to Texas
Has not been employed as a registered nurse during the past four (4) years unless he/she
passed the appropriate RN licensure examination during that time
Has been convicted, adjudged guilty by a court, plead guilty, no contest or nolo contendere
to any crime in any state, territory or country, whether or not a sentence was imposed,
including any pending criminal charges or unresolved arrest (excluding minor traffic
iv
BON Rule, 22 TAC §213.27. Good Professional Conduct.
v
BON. (January 2006). Texas Board of Nursing Bulletin, 37 (1), 7.
vi
HB 2208,Texas Legislature, 78th Regular Session (2003).
§301.3011, Texas Occupations Code
§411.125(a), Texas Government Code
vii
Nursing Practice Act, §§301.259 & 301.260, Texas Occupations Code.
A Guide for APRN Practice in Texas
4





violations). This includes expunged offenses and deferred adjudications with or without
prejudice of guilt. Please note that all occurrences of driving under the influence (DUI),
driving while intoxicated (DWI), Public Intoxication (PI) must be reported and are not
considered minor traffic violations. One time minor in possession (MIP) or minor in
consumption (MIC) do not need to be disclosed. However, if the nurse has two or more
MIP’s or MIC’s, these must be disclosed.
Has criminal charges pending, including unresolved arrests
A licensing authority refused to issue a license or ever revoked, annulled, cancelled,
accepted surrender of, suspended, placed on probation, refused to renew a license,
certificate or multi-state privilege held by the nurse now or previously; or ever fined,
censured, reprimanded or otherwise disciplined the nurse
Has been addicted to and/or treated for the use of alcohol or any other drug within the past
five years
Has been diagnosed with, treated, or hospitalized for schizophrenia or psychotic disorder,
bipolar disorder, paranoid personality disorder, antisocial personality disorder, or borderline
personality disorder within the past five years
Claims a Compact Primary State of Residence or Compact Home State, other than Texas,
as defined by the Nurse Licensure Compactviii
Those APRNs who are planning to reside in Texas permanently and wish to practice as an
advanced practice registered nurse must apply for a Texas RN License by Endorsement.
Even though an APRN moving to Texas has already met the requirements for an RN license in
the state he/she resided, the APRN must still comply with the laws and regulations for Texas
RNs. In other words, endorsement means that nurses may become licensed in Texas by
meeting equivalent licensure requirements, e.g. the nurse will not be required to take the
NCLEX-RN if the nurse took an equivalent test in his/her state or jurisdiction.ix However, as of
September 1, 2008, all applicants by endorsement must pass the Texas Nursing
Jurisprudence Examination before they can be issued a permanent Texas RN license.x
Once the BON verifies the credentials of the applicant, the BON issues a temporary RN license,
generally within ten business days of receiving the application. The temporary license is valid for
120 days. The BON issues a Texas RN license once the BON finds that the RN meets all of the
criteria to practice in Texas.
If the APRN is moving from a state that does not participate in the Nurse Licensure
Compact for RNs/LVNs, becoming licensed as an APRN is a two-step process. While the
APRN may submit both the RN and APRN applications together, the BON must issue the RN
license (either temporary or full) prior to processing that application as an advanced practice
registered nurse.
If the APRN is moving from a state that participates in the Nurse Licensure Compact for
RN/LVNs, the Registered Nurse Endorsement Application and Application for Authorization to
Practice as an advanced practice registered nurse should be completed concurrently. The
applicant may practice as an RN in Texas for up to 30 days on the Multi-State Compact
viii
BON website, Accessed: http://www.bon.state.tx.us/end-eligibility.htm
BON Rules, 22 TAC §217.1(12).
x
BON. Endorsement Information. Accessed: http://www.bon.state.tx.us/olv/endorsement.html .
ix
A Guide for APRN Practice in Texas
5
Privilege while completing the endorsement process, and may practice as an APRN as soon as
the BON grants interim approval.xi
Nurse Licensure Compact
The Nurse Licensure Compact (NLC) serves as an agreement among states to mutually
recognize each other's nursing licensees. This agreement allows an RN to reside in one state
and practice in another, both physically and electronically. The RN must comply and be
knowledgeable of the laws and regulations of each state in which he/she practices.
Nurses who live in one compact party state but practice in another benefit from this agreement
by not having the expense and inconvenience of maintaining licenses in multiple states. Nurses
are required to hold a license in the state of residency, also known as the home state license.
Only one compact state may be called the home state and all requirements for licensure in that
state must be met. Nurses may practice in other compact states, also called remote states,
without obtaining additional licenses. Nurses who reside in a state that has not enacted the
Compact do not have the multi-state privileges of compact states. For complete information on
the NLC, go the National Council of State Boards of Nursing website.1
Texas is included as one of the states agreeing to recognize RNs from other compact states.
See Table 1.1 from the National Council of State Boards of Nursing (NCSBN).xii
Table 1.1: Current Nurse Licensure Compact States for RNs/LVNs (as of 7/29/2008)
State
Implementation Date
Arizona
7/1/2002
Arkansas
7/1/2000
Colorado
10/1/2007
Delaware
7/1/2000
Idaho
7/1/2001
Iowa
7/1/2000
Kentucky
6/1/2007
Maine
7/1/2001
Maryland
7/1/1999
Mississippi
7/1/2001
Nebraska
1/1/2001
New Hampshire
1/1/2006
New Mexico
1/1/2004
North Carolina
7/1/2000
North Dakota
1/1/2004
Rhode Island
7/1/2008
South Carolina
2/1/2006
South Dakota
1/1/2001
Tennessee
7/1/2003
Texas
1/1/2000
Utah
1/1/2000
Virginia
1/1/2005
Wisconsin
1/1/2000
BON. Advanced Practice Application – Frequently Asked Question #1. Accessed:
http://www.bon.state.tx.us/practice/faq-APRNapps.html#18
xii
NCSBN. Participating States in the NLC. Accessed: https://www.ncsbn.org/158.htm.
xi
A Guide for APRN Practice in Texas
6
Pending States
Missouri
APRN Compact
The Nurse Licensure Compact for RNs/LVNs does not include APRN authorization. While
Texas is among the three states that have adopted the APRN Compact, the Compact is not
expected to be implemented until December 2011. Utah and Iowa were the first states to adopt
the APRN Compact, and it is anticipated that at least two more state will become APRN
Compact states soon. Until the APRN Compact is implemented, even RNs with advanced
practice licensure or authorization in a APRN compact state must apply for authorization to
practice as an APRN in Texas if they wish to practice in an APRN role.2
Renewal Requirements
The Registered Nurse license must be renewed every two years. The BON will approve the
applicant if he/she continues to exemplify good professional character and completes twenty
hours of continuing education (CE) as required by the BON rule, 22 TAC §216.3. Until January
2008, nurses had the option of obtaining a portion of continuing education hours through Type 2
education. However, because of wide availability of CE programs approved by a credentialing
agency recognized by the Board (formerly known as Type 1 CE) through the Internet and
nursing journals, the BON now requires all CE to be from an approve source. For more details
on continuing education requirements for advanced practice registered nurses, see below.
Continuing Education / Continuing Competency
On August 14, 2009, the BON officially repealed its old rules titled, Continuing Education, and
replaced them with new rules titled, Continuing Competency (BON Rule 216.1 – 216.11). The
big change that will be good news for all APRNs is that nurses will now have the option of
showing evidence of meeting the 20 hours of continuing education as described below or
showing proof of current national certification in the nurse’s area of practice that meets the
criteria establish by the Texas Board of Nursing (see Table 1.3). APRNs that hold prescriptive
authority must still attain an additional 5 hours of continuing education in pharmacotherapeutics.
The Board of Nursing defines continuing education in nursing as, "programs beyond the basic
preparation which are designed to promote and enrich knowledge, improve skills, and develop
attitudes for the enhancement of nursing practice, thus improving health care to the public." xiii
This leads the Board to require an APRN to earn continuing education hours within his/her
advanced role and population-focus, as recognized by the BON.
The 20 hour CE requirement begins the month after the license is renewed until the next
renewal period two years later. For instance, if the nurse's renewal is in September, continuing
education hours for the next renewal period will begin October 1. An exception to this rule
occurs for nurses moving to Texas from another state or renewing the license for the first time.
They are exempt from the 20 continuing education hours for the first license renewal since the
licensure period will vary from 6 to 29 months, depending on the date of birth of the nurse.
Additional CE hours earned cannot be carried over into the next renewal period.xiv
xiii
xiv
BON Rule 22 TAC §216.1(9)
BON Rule, 22 TAC §216.8.
A Guide for APRN Practice in Texas
7
In addition to the 20 contact hours of continuing education in the advanced practice role and
population-focus or maintenance in a national certification program acceptable to the Board, an
advanced practice registered nurse who has prescriptive authority must also complete at least
five additional CEs at the APRN level in pharmacotherapeutics within the preceding two years.
Category I Continuing Medical Education (CME) contact hours will meet requirements for
continuing education for APRNs.
These CE programs must be approved by one of the BON's recognized credentialing agencies.
Texas BON recognizes the following credentialing agencies applicable to APRNs' practices.









American Academy of Nurse Practitioners
American Nurses Association/American Nurses Credentialing Center
American Association of Critical-Care Nurses
American Association of Nurse Anesthetists
American College of Nurse-Midwives
Category 1 Continuing Medical Education
National Association of Pediatric Nurse Practitioners
Colleges and Universities
Other State Boards of Nursing
The following are examples of acceptable programs for continuing education.

Programs offered by organizations that have approval of one of the above agencies. For
example, Texas Nurse Practitioners Annual Conference offers CE hours approved by the
American Academy of Nurse Practitioners (AANP).
 Academic courses that are within the curriculum for a nursing degree or relevant to nursing
practice/health, with one semester credit hour equivalent to 15 CE hours if the APRN
passes or earns a C or better in the class.
 Home study programs approved by one of the recognized credentialing agencies listed
above.
The Board of Nursing specifies activities that are not accepted as continuing education.









Basic CPR
In-service programs that provide specific information about the work setting's philosophy,
procedures, on-the-job training and equipment demonstration
On-the-job training and equipment demonstration
Refresher courses designed to update knowledge
Orientation programs designed to introduce employees to a specific work setting
Courses that focus upon self-improvement, changes in attitude, self-therapy, selfawareness, weight loss and yoga
Economic courses for financial gain, e.g., investments, retirement, preparing resumes, and
techniques for job interviews
Courses that focus on personal appearance in nursing or careers
Liberal Arts courses when unrelated to patient/client care
A Guide for APRN Practice in Texas
8

Courses for lay peoplexv
The BON requires RNs to keep a record of all continuing education hours for a minimum of 2
renewal periods (four years) in case of an audit.xvi
Occasionally, legislators will mandate that nurses have a minimum amount of continuing
education hours for a specific health care topic. The first instance of mandated CE for nurses
occurred in 2001 from legislation passed during the 77th Legislative Session. Nurses were
required to take two hours of Hepatitis C continuing education. That CE mandate expired in
2004. In 2003, during the 78th Regular Session, legislators mandated all nurses take a
minimum of two CE hours on bioterrorism prior to 2007.3 The 79th Legislature mandated that
RNs who work in emergency rooms on or after September 1, 2006, must obtain 2 hours of
continuing education in forensic evidence collection within two years of the date of employment.
The requirement applies to both RNs and APRNs practicing in ER settings and includes those
nurses who may occasionally “float” to or cover the ER.xvii
Change of Name and/or Address
The BON rule, 22 TAC §217.7, requires all nurses to notify the Board within 10 days of a
change in name or address. Instructions for notification of change of name and address are
available on the BON website.xviii BON notification of change in name or address is important for
various reasons. The obvious reason is so a nurse may receive the “Texas Board of Nursing
Bulletin” that keeps all nurses up-to-date regarding practice issues. The most important reason
is in case the BON gives notice of a complaint to a nurse. Any notice to a nurse is deemed
given if the notice is sent to the address listed in the BON file. Therefore, a complaint sent to an
old address could result in a default order because the nurse did not respond to the notice.
Licensure Verification
The BON no longer issues printed licenses. All licenses must be verified online through the
Texas Board of Nursing’s website.xix The public may verify the RN license, APRN authorization
and prescriptive authority, and view any disciplinary action against the nursing license. If
someone asks to see a nursing license, APRNs should know to direct the person to
www.bon.state.tx.us. The APRN may print a copy of the license by entering his/her license
number into the RN Online Vertification page and selecting “Click here to view license.”
1.3 Advanced Practice Nursing Authorization/APRN Licensure
On November 14, 2008, the Board of Nursing adopted amended BON Rule 221.4 to change
APRN authorization to Advanced Practice Registered Nurse (APRN) licensure.xx The APRN
license will be a second license issued by the BON in addition to the RN license. The process
for obtaining and renewing the APRN license will be the same as obtaining and renewing the
APRN authorization. Therefore all of the following information will be valid, even after
implementation of APRN licensure in 2010, until other rules (such as Rule 221.11 on
xv
BON. The 1-2-3s of CE: Understanding & Complying with the Continuing Education Requirements for Nurses in
Texas. Accessed: http://www.bon.state.tx.us/nursingeducation/ceu.html.
xvi
BON Rule, 22 TAC §216.7.
xvii
BON Rule, 22 TAC §216.3(d).
xviii
BON Frequently Asked Questions about Licensing, http://www.bon.state.tx.us/olv/faqs-licensing.html, See FAQ
#3 for address change and #5 for name change.
xix
Verify RN licensure, APRN authorization and prescriptive authority at
http://www.bon.state.tx.us/olv/verification.html.
xx
BON Proposed Rules, Advanced practice registered nurses. (August 8, 2008). Texas Register, Vol 33, No. 32.
A Guide for APRN Practice in Texas
9
identification) are also amended. CNAP notifies APRNs of these BON rule changes through its
Interim Updates and website. In the meantime, the only difference will be substitution of the
term “APRN” instead of “APRN” and substitution of the word “license” for “authorization.”
To be eligible for full authorization to practice as an advanced practice registered nurse in
Texas, all of the following requirements must be met.





Hold a current, valid, unencumbered license as a registered nurse in the State of Texas or
reside in any party state and hold a current, valid, unencumbered RN license in that state
Successfully completed a BON recognized post-basic advanced educational program of
study (graduate level) appropriate for practice in the advanced nursing role and specialty
Either completed 400 hours of current practice or completed an advanced educational
program within the past 2 years (For APRNs who have been out of practice for more than
two years, see BON Rule 221.4(b)(3) to read options for meeting the practice requirement.)
Participate in 20 hours of continuing education in each advanced practice role and specialty
in which the BON authorizes the APRN to practice
Successfully pass a national certification examination in the advanced nursing role and
specialty recognized by the BON or meet alternative requirements if no certification exam
exists.xxi This requirement applies to all APRNs graduating before January 1, 1996.
APRN Titles and Role Recognition
The law protects the use of advanced practice nursing titles. This means that individuals cannot
use a title such as FNP if the Texas BON has not authorized the person to practice as a Family
Nurse Practitioner in Texas, even if the FNP is recognized in another state. For example, an
Arkansas gerontolgy clinical nurse specialist (GCNS) applies to become a Texas GCNS but
fails to meet all of the requirements for authorization in this state. The individual can begin the
process to meet the requirements to be recognized as a GCNS in Texas. However, during this
time, the person may not present himself/herself as a GCNS since the Texas BON has not
recognized him/her in that APRN role and population-focus.
Title protection is important for public safety because it assures that persons who use the title
meet certain standards. Therefore it is very important that APRNs use appropriate titles, based
on their APRN authorization from the BON. All APRNs should understand the BON's process for
RN licensure and APRN authorization and meticulously maintain all the requirements to
continue that authorization. Failure to do so terminates the nurse's right to present
himself/herself as an advanced practice registered nurse, including the use of any advanced
practice title in any signature or title. Failure to maintain authorization also subjects the nurse to
potential sanctions and penalties by the BON if the former APRN continues to use an APRN title
or work in an APRN role.xxii
Use of Titles in the APRN's Signature and Identification
The Board of Nursing is very clear regarding the use of professional identification.
BON Rule 221.11
When providing advanced practice nursing care to patients, the advanced practice
registered nurse shall wear clear identification that indicates the individual is a registered
nurse with the appropriate advanced practice designation authorized by the BON.
xxi
xxii
BON Rule, 22 TAC §221.4.
BON Rule, 22 TAC §221.2
A Guide for APRN Practice in Texas
10
The term "APRN" is not used as a title or credential after the APRN's name. The BON requires
APRNs to identify themselves (and sign their names on documentation) as RNs and specify
their advanced practice role and specialty authorized by the BON. For example, a pediatric
nurse practitioner must include the initials "RN, PNP" after his/her name. The APRN may also
elect to include other credentials indicating his/her educational preparation and/or certifications,
e.g. the pediatric nurse practitioner may elect to sign as "MSN, RN, PNP," or "MSN, RN,
CPNP." The first set of initials indicates the highest degree earned by the APRN. The "C" prior
to "PNP" refers that the PNP is "Certified" by the Pediatric Nursing Certification Board. The BON
also allows "RN" to be embedded within credentials. For example, the certifying body for nurse
anesthetists confers the credential “CRNA” standing for Certified Registered Nurse Anesthetist.
Since RN is embedded in that credential, nurse anesthetists may simply write CRNA after their
names rather than writing, RN, CRNA.
If APRNs elect to use certification credentials, the APRN's certifying body delineates the initials
used. For example in 2007, the American Nurses Credentialing Center (ANCC) changed the
initials for credentials it awards. The credential, "APRN, BC" was eliminated because it infringed
on a title that is protected by many Boards of Nursing. APRNs certified by ANCC now simply
add “BC” (standing for “board certified”) to the initials for each advanced practice role and
population-focus it certifies. Therefore, a Family Nurse Practitioner certified by ANCC uses the
title, “FNP-BC.”xxiiiIf certified by the American Academy of Nurse Practitioners, the FNP may sign
“CFNP.” Regardless of what other credentials an APRN chooses to use, the BON requires that
the APRN must identify his/her license as an RN and the advanced practice role or specialty in
which the APRN is working. It is quite possible, that
If the APRN is authorized in more than one APRN role or population-focus area, the APRN only
has to identify the specific role and population-focus in which the APRN is working at the time.
For instance, if the BON authorizes an APRN as a family nurse practitioner (FNP) and a nursemidwife (CNM), the APRN could use either the FNP or CNM initials when providing routine
women's health care. However, if the APRN is attending a woman delivering a baby (something
that would not be within the FNP's scope of practice), the APRN must use the CNM credential
in signing her name and identifying herself. While the FNP/CNM could elect to use both
credentials, the BON would not require this APRN to do so.4
The Board of Nursing reduced the APRN titles it recognizes after January 1, 2006. The goal is
to limit the APRN titles recognized for entry into advanced practice in Texas to those with broad
educational preparation and a national certification exam. It eliminates the proliferation of
subspecialties as an entry into advanced practice nursing. This change affected both NPs and
CNSs because some NP and CNS educational programs had very narrow specialty tracks,
sometimes including only one disease process as the focus of the educational program. Nurse
anesthetists and nurse-midwives have always maintained broad entry-level education, e.g.
there are no pediatric CRNAs. All CRNAs have the educational preparation to work with all age
populations. Table 1.2 lists the specialties for NPs and CNSs that are recognized by the BON.
Table 1.2: Population-Focus Areas for NPs and CNSs that are recognized by the BON
Nurse Practitioners
Clinical Nurse Specialists
Acute Care - Adult (ACNP)
Adult Health/Medical Surgical
Acute Care - Pediatrics (ACPNP)
Community Health
Adult (ANP)
Critical Care
xxiii
For ANCC advanced practice certification titles, see
http://www.nursecredentialing.org/Certification/PoliciesServices/CredentialsList.aspx
A Guide for APRN Practice in Texas
11
Family (FNP)
Gerontological (GNP)
Neonatal (NNP)
Pediatric (PNP)
Psychiatric-Mental Health (PMHNP)
Women’s Health (WHNP)
Gerontological
Pediatric Nursing
Psychiatric-Mental health (PMH-CNS)
What happens to those NPs and CNSs already recognized in another population-focus area not
listed in Table 1.2, or a student planning to graduate from a program whose population-focus
was recognized prior to 2006, but no longer is on the list of recognized titles?
 All NPs and CNSs currently authorized to practice will continue to be granted authorization
within that specialty as long as he/she meets all requirements for renewal of RN licensure and
APRN authorization.
 Between January 1, 2006, and January 1, 2010, all new graduates or APRNs seeking
authorization to use any of 13 titles listed in BON Rule 221.7(e) may be granted a waiver and
authorized by the BON. The applicant must submit a written request to waive Board Rule
221.2 and indicate the APRN title under which the individual requests to be recognized.xxiv
Once authorized, these APRNs will be able to renew their APRN authorization as long as they
meet all other requirements.
In summary, the BON allows some variation in the way APRNs may write their titles. At a
minimum, the title must include "RN" and the APRN role and specialty recognized by the BON.
All other credentials are at the discretion of the APRN. However, APRNs should keep in mind
that the public becomes confused when there are too many initials after one's name. Even
APRN colleagues sometimes have trouble deciphering the initials, so it may be wise for APRNs
to limit initials at the end of their names.
Education
The specific requirements for post basic advanced educational programs are delineated in
Chapter 221.3 of the BON Rules and Regulations. To summarize the general requirements, the
Advanced practice registered nurse must complete:
1. A master’s degree.
2. An APRN (graduate level) program recognized by the Texas BON (or the state Board in
which the program was offered provided certain criteria are met) or accredited by a national
accrediting body recognized by the Texas BON
3. A program must be at least one academic year in length and shall include a preceptorship.
NPs and CNSs must attend separate, dedicated courses offering advanced
pharmacotherapeutics, advanced health assessment and advanced pathophysiology and/or
psychopathology (for psychiatric/mental health specialty only), theoretical and clinical role
preparation, courses in the population-focus area, and 500 hours of practicum/ preceptorship/
internship to integrate clinical experiences
Applicants applying to be recognized in more than one advanced practice role and/or
population-focus area must obtain 500 hours of practicum in each role and/or population-focus.
For instance, if an applicant wishes to be authorized as a nurse practitioner in both pediatrics
and adult health, the applicant would have to complete 500 unduplicated practicum hours
specific to each of those populations. Likewise, if an applicant wishes to be recognized in two
xxiv
BON Rule, 22 TAC §221.7(e).
A Guide for APRN Practice in Texas
12
roles such as both a CNS and NP in adult health, the applicant would have to complete 500
hours in each role, even though the population-focus is adult health in both the APRN roles.
Almost all APRNs graduating after January 1, 2003, must have a master’s degree in order to be
authorized to practice in Texas. However, qualified certificate prepared nurse-midwives and
women's health care nurse practitioners that completed their programs between January 1,
2003 and December 31, 2006, were granted waivers for the master’s degree requirement.
Those and all other certificate-educated APRNs may renew APRN authorization as long as they
meet all other requirements, including national certification.
However, other barriers remain for those certificate program graduates unless they complete
their master’s degree in nursing. They do not qualify for Medicare provider numbers, limiting
their ability to be directly reimbursed. In addition, for women’s health NPs, if they ever let their
certification lapse, they will no longer qualify to sit for the NCC certification exam. Without
national certification, they do not qualify to renew APRN authorization. Therefore, it is strongly
recommended that these graduates complete their master’s degree. All those graduating after
2006, must earn a master’s degree.
Continuing Education to Maintain APRN Authorization
Continuing education hours are the same as for license renewal of the registered nurse. See
section 1.2. In addition, advanced practice registered nurses with prescriptive authority must
obtain an additional five hours in pharmacotherapeutics during the preceding 24 months.
Practice Requirements to Maintain APRN Authorization
The BON has a practice requirement for all APRNs. They must practice a minimum of 400
hours each biennium within his/her advanced role and population-focus. For APRNs who are
recognized in dual roles and seeking renewal for both, 400 hours must be worked for each role
and/or population-focus being renewed. For example, if an acute care nurse practitioner who is
also authorized as an family nurse practitioner is seeking renewal, he/she must practice 400
hours as an acute care nurse practitioner and 400 hours as a family nurse practitioner in order
to be granted renewal of authorization for both populations.
If the APRN is renewing for the first time after initial recognition, the 400-hour practice
requirement is met through the practice requirements in the program and therefore considered
waived. This option is permitted new APRNs completing their programs or APRNs completing a
second role or population-focus program since their license renewal is linked to the month of
their birth and may occur less than 24 months since their authorization in the APRN role or
population-focus area.xxv
Certification
With few exceptions, all advanced practice registered nurses completing an accredited APRN
program after 1996 must pass a national certification examination in his/her role (e.g., NP, CNS,
etc) and population-focus area (FNP, PNP, etc) in order to be fully authorized to practice in
Texas. The APRN must have the appropriate education and the BON must designate the
certification examinations that are acceptable.
Until January 1, 2010, after which waivers will no longer be granted, new graduates for APRN
titles not included in Table 1.2, the BON may waive the certification requirement and substitute
xxv
BON Rules & Regulations, 22 TAC §221.4 (a)(3).
A Guide for APRN Practice in Texas
13
1,000 hours of supervised practice if no related national certification exam exists.xxvi See Table
1.3 for the recognized APRN certifying bodies.
Table 1.3: BON-Recognized APRN Certification Exams
Advanced Practice Role and
Population-focus
National Certification Examination
Recognized by the BON
Nurse Anesthetist
Council on Certification of Nurse Anesthetists’
Certification Examination; www.aana.com
Nurse- Midwife
American Midwifery Certification Board
Examination - must take examination
for certification as a CNM; www.accmidwife.org
Acute Care Nurse Practitioner
(ACNP)
American Nurses Credentialing Center’s ACNP
examination; www.nursecredentialing.org
Acute Care Pediatric Nurse
Practitioner (ACPNP)
Pediatric Nursing Certification Board’s Acute
Care - CPNP examination; www.pncb.org
Adult Nurse Practitioner
American Nurses Credentialing Center’s ANP
examination; www.nursecredentialing.org or
American Academy of Nurse Practitioners’
ANP examination; www.aanp.org
Emergency Nurse Practitioner
(ENP) (waiver required)
American Nurses Credentialing Center’s FNP
examination; www.nursecredentialing.org
Family Nurse Practitioner (FNP)
American Nurses Credentialing Center’s FNP
examination; www.nursecredentialing.org or
American Academy of Nurse Practitioners’
FNP examination; www.aanp.org
Gerontological Nurse Practitioner
(GNP)
American Nurses Credentialing Center’s GNP
examination; www.nursecredentialing.org
Neonatal Nurse Practitioner (NNP)
National Certification Corporation’s NNP
examination; www.nccwebsite.org
Pediatric Nurse Practitioner (PNP)
Pediatric Nursing Certification Board’s Primary
Care-CPNP examination; www.pncb.org or
American Nurses Credentialing Center’s PNP
examination; www.nursecredentialing.org
Psychiatric/Mental Health Nurse
Practitioner (PMHNP)
American Nurses Credentialing Center’s Adult
PMHNP examination; or Family PMHNP
examination; www.nursecredentialing.org
Women’s Health Nurse Practitioner
(WHNP)
National Certifcation Corporation’s WHNP
examination; http://www.nccwebsite.org/
Clinical Nurse Specialist in Adult
Health or Medical/Surgical Nursing
American Nurses Credentialing Center’s
Clinical Specialist - Adult Health Nursing
examination; www.nursecredentialing.org
xxvi
BON Rules, 22 TAC §221.4(b) and 22 TAC §221.7(c).
A Guide for APRN Practice in Texas
14
Clinical Nurse Specialist in Critical
Care Nursing
American Association of Critical Care Nurses
Certification Corporation – Critical Care Nurse
Specialist (CCNS) certification. www.aacn.org
Clinical Nurse Specialist in
Gerontological Nursing
American Nurses Credentialing Center’s
Clinical Specialist – Gerontolgical Nursing
examination; www.nursecredentialing.org
Clinical Nurse Specialist in
Medical/Surgical Nursing
American Nurses Credentialing Center’s
Clinical Specialist - Adult Health Nursing
examination; www.nursecredentialing.org
Clinical Nurse Specialist in Pediatric
Nursing
American Nurses Credentialing Center’s
Clinical Specialist - Pediatric Nursing
examination; www.nursecredentialing.org
Clinical Nure Specialist in
Psychiatric/Mental Health Nursing
American Nurses Credentialing Center’s
Clinical Specialist – Adult Psychiatric/Mental
Health Nursing examination or Child and/or
Adolescent
Psychiatric/Mental Health Nursing examination;
www.nursecredentialing.org
Applications for APRN Authorization/Licensure & Prescriptive Authority
Applicants for APRN recognition may complete and submit the APRN application online (if there
are no eligibility issues), or download and submit the completed application by mail.xxvii Both
application methods may be accessed through the Board of Nursing Advanced Practice
webpage.xxviii The BON provides online detailed instructions for completing the application and
answers to Frequently Asked Questions that are very helpful.
There are separate applications for the RN license, APRN authorization/APRN license, and
prescriptive authority. The applications on the website include both the APRN authorization and
the prescriptive authority application. Therefore applicants may request authorization/licensure
and prescriptive authority simultaneously or separately. It is essential that APRN applicants
understand that prescriptive authority authorization is not automatically included in the APRN
authorization. The applicant must complete and submit the Application for Prescriptive Authority
for each role and population. Until the Board issues a prescriptive authority number, the APRN
cannot prescribe drugs or medical devices.5
Provisional APRN Authorization
There may be a few APRNs still practicing under provisional authorization but that is a dwindling
group. On November 14, 2008, the BON repealed BON Rule 221.5 on Provisional
Authorization. Therefore, December 2008 graduates were the last group to practice under
provisional authorization.xxix Provisional authorization was the process by which new graduates
of APRN programs practiced as an APRN for up to one year until passing the appropriate
national certification examination. All graduates in spring 2009 and after will practice under full
or interim approval.
xxvii
Completed applications and any additional information required may be mailed to Texas Board of Nursing, 333
Guadalupe, Ste, 3-460, Austin, Texas 78701.
xxviii
APRN Webpage, http://www.bon.state.tx.us/practice/gen-APRN.html.
xxix
Advanced practice registered nurses. Texas Register, Vol. 33, No. 32 (August 8, 2008). Accessed
http://www.sos.state.tx.us/texreg/archive/August82008/PROPOSED/22.EXAMINING%20BOARDS.html#113.
A Guide for APRN Practice in Texas
15
Interim Approval
Interim approval allows eligible APRNs and new APRN graduates to begin practicing without
prescriptive authority while the BON reviews the application. The BON may grant a 120-day
interim approval one time for each APRN role or population-focus area. Interim approval cannot
be renewed or extended beyond the initial 120-day period. If the BON determines an APRN
applicant has not met all of the criteria for full APRN authorization, the interim approval will be
rescinded immediately and the applicant can no longer refer to him/herself as an APRN or use
the title associated with the advanced practice role and population. xxx
Interim approval is similar to the concept of a temporary RN license, and may be granted to
eligible experienced advanced practice registered nurses. For example, an APRN from
Arkansas moving to Texas can apply for Interim approval and full authorization to practice as an
APRN in Texas. While the full authorization may take a few weeks to a few months, interim
approval may be granted quickly to allow the applicant to begin practicing as an APRN.
Interim approval allows new graduates to practice while they take the appropriate national
certifying exam and the BON receives official notification of passage. Under BON Rule 221.6,
the BON may grant interim approval to new graduates applying for authorization to practice as
an APRN within six months of the program completion date. The new graduate must show proof
of eligibility to take an appropriate national certification exam.
When new graduates apply to take the certification exam, the applicant should request that the
certifying board send the certification results to the Texas Board of Nursing. In addition, when
the certifying board officially notifies the APRN of the exam results, the APRN should
mail or fax (512-305-7401) results to the BON. If the applicant failed the exam, the
applicant must cease practice as an APRN immediately and return the original interim
approval document.
APRNs practicing under interim approval are not permitted to prescribe. If the APRN applicant
applied for prescriptive authority and the applicant meets all requirements, the BON issues the
prescriptive authority number when the APRN receives full authority to practice.
APRN Renewal Requirements
The APRN authorization, in conjunction with the RN renewal, must be renewed every two years
in the APRN’s birth month. The BON will approve the applicant if he/she meets all of the
following requirements.
 Continues to exemplify good professional character
 Completes 20 hours of continuing education (CE) targeted for the APRN role and specialty.
Of those 20 hours, a minimum of 10 hours must be Type 1 CE, although the APRN may
elect to earn all 20 hours as Type 1. Advanced practice registered nurses with prescriptive
authority are required to have an additional five hours of CE targeted for
pharmacotherapeutics each biennium
 Practice 400 hours in the APRN role and specialty
 Maintain national certification in the APRN role and specialty (for those APRN who
graduated from an APRN program after January 1, 1996 or were authorized to practice
based upon obtaining national certification)xxxi
xxx
xxxi
BON Rule, 22 TAC §221.6. Interim Approval.
BON Rule, 22 TAC §221.8. Maintaining Active Authorization as an Advanced practice registered nurse.
A Guide for APRN Practice in Texas
16
Inactive Status
Advanced practice registered nurses who are relocating outside of Texas or electing not to
practice may wish to change their APRN status to inactive. The APRN must write a letter to the
Board requesting to change the active APRN status. Once the APRN obtains an inactive status,
he/she can no longer practice as an APRN in Texas, use advanced practice titles or prescribe
medications unless he/she re-establishes active status.xxxii
One should carefully consider the decision to request inactive status. Inactive status will be
particularly problematic for APRNs not certified by a BON recognized national certifying board
or if the APRN’s educational program would not meet the current standards for APRN
education. If inactive APRN status continues for longer than two years, APRNs who wish to
subsequently reactivate may find they no longer qualify for full APRN authorization without
obtaining additional education.
Volunteer Retired Status
Based on a law passed in the 2005 Texas Legislative Session, RNs, including APRNs, who are
65 years or older may apply for a special type of retired status that permits nurses to volunteer
his/her services.6 This is a variation of retired status that permits practice only in charity care
settings, as defined in BON Rule 217.9(d)(5). APRNs practicing under the volunteer retired (VR)
provisions may not receive any compensation for their services.
RNs practicing only in a volunteer capacity in conjunction with a charity care organization will be
required to maintain only 10 hours of continuing education. APRNs authorized in conjunction
with a Volunteer Retired Registered Nurse (VR-RN) status will still be required to have 20 hours
of continuing education every 2 years. These APRNs will not be required to maintain national
certification or meet the requirement for 400 hours of clinical practice, but they will be required
to work with a physician in the same practice specialty.xxxiii Because of other rules that only
permit APRNs with full and unrestricted licenses to have prescriptive authority, APRNs
practicing under the Volunteer Retired provisions will not be permitted to have prescriptive
authority.xxxiv
APRNs practicing in the volunteer retired status will be able to identify themselves as APRNs in
the advanced practice role and specialty recognized by the BON. For instance, an FNP would
sign his/her name using the initials, VR-RN, FNP, or a clinical nurse specialist specializing in
psychiatric-mental health, would use the initials, VR-RN, PMH-CNS.
Reinstatement or Reactivation of APRN Status
Once an APRN allows his/her status to go inactive or simply does not renew the authorization
for two years or more, that individual must comply with the following steps to reinstate the APRN
authorization. The individual must meet the APRN renewal requirements for good professional
character, current RN license, 20 CE hours, 400 hours of current practice in the advanced role
and specialty, and maintain a national certification in the APRN role or specialty. Generally the
APRN in this situation will not meet the practice hours. If so, the BON requires the APRN to
complete the supervised practice outlined in Table 1.4.xxxv
BON Rule, 22 TAC §221.9. Inactive Status.
BON Rules & Regulations, 22 TAC §216.3(d)(2) and 22 TAC §217.9(d)(4).
xxxiv
BON Rules, 22 TAC §221.9(b), 22 TAC §222.5, and 22 TAC §222.6.
xxxv
BON Rules, 22 TAC §221.10. Reinstatement or Reactivation of Advanced practice registered nurse Status
xxxii
xxxiii
A Guide for APRN Practice in Texas
17
Table 1.4 : Supervised Practice Required to Reinstate APRN Authorization
Lapsed Practice Hours
Requirement to Become Reinstated as
APRN
400 hours of direct supervision from an
> 2 years or < 4 years since last
APRN or physician in a similar specialty
practiced
role.
> 4 years since last practiced
Complete a refresher course or extensive
orientation in the appropriate advanced
practice specialty and role that includes a
supervised clinical component by a
qualified instructor/sponsor. See the BON’s
website for the information on the APRN
Refresher Course/Extended Orientation. If
you need additional guidance, contact
[email protected].
1.4 Standards of APRN Practice
Advanced practice registered nurses are guided by standards of practice developed by the
Board of Nursing, and professional nursing organizations. These standards outline the APRN's
responsibilities, formulate the professional priorities, and reflect the values of nursing. Although
the APRN is guided by the minimum standards established, the APRN may set higher
professional and individual standards for himself/herself.
BON Standards of Practice
APRNs are responsible for upholding the standards established by the BON in Rule 217.11,
Subsections (1), (3), and (4). The standards are grouped into four tiers. All nurses must follow
the standards outlined in the first tier in Subsection (1) entitled, "Standards Applicable to All
Nurses." Subsection (2) specifies standards that are only applicable to LVNs. RNs must uphold
the standards delineated in Subsections (1) and (3), "Standards Specific to Registered Nurses,"
and APRNs must uphold the standards delineated in Subsections (1), (3), and (4), "Standards
Specific to Registered Nurses with Advanced Practice Authorization." In addition, all nurses
should be familiar with the list included in BON Rule 217.12 on "Unprofessional Conduct."7
In addition to the nursing standards, the BON outlines the following "Core Standards for
Advanced Practice.”
22 TAC §221.13 (BON Rule)
a) The advanced practice registered nurse shall know and conform to the Texas Nursing
Practice Act; current BON rules, regulations, and standards of professional nursing; and
all federal, state, and local laws, rules, and regulations affecting the advanced role and
specialty area. When collaborating with other health care providers, the advanced
practice registered nurse shall be accountable for knowledge of the statutes and rules
relating to advanced practice nursing and function within the boundaries of the
appropriate advanced practice category.
b) The advanced practice registered nurse shall practice within the advanced specialty
and role appropriate to his/her advanced educational preparation.
c) The advanced practice registered nurse acts independently and/or in collaboration
with the health team in the observation, assessment, diagnosis, intervention, evaluation,
A Guide for APRN Practice in Texas
18
rehabilitation, care and counsel, and health processes; and in the promotion and
maintenance of health or prevention of illness.
d) When providing medical aspects of care, advanced practice registered nurses shall
utilize mechanisms that provide authority for that care. These mechanisms may include,
but are not limited to, clinical protocols or other written [forms of] authorization. This shall
not be construed as requiring authority for nursing aspects of care.
1. Protocols or other written authorization shall promote the exercise of professional
judgment by the advanced practice registered nurse commensurate with his/her
education and experience. The degree of detail within protocols/policies/practice
guidelines/clinical practice privileges may vary in relation to the complexity of the
situations covered by such protocols, the advanced specialty area of practice, the
advanced educational preparation of the individual, and the experience level of
the individual advanced practice registered nurse.
2. Protocols or other written authorization:
A) Should be jointly developed by the advanced practice registered nurse and
the appropriate physician(s)
B) Shall be signed by both the advanced practice registered nurse and the
physician
C) Shall be reviewed and re-signed at least annually
D) Shall be maintained in the practice setting of the advanced practice registered
nurse
E) Shall be made available as necessary to verify authority to provide medical
aspects of care
e) The advanced practice registered nurse shall retain professional accountability for
advanced practice nursing care.
Professional Standards of Practice
The BON often specifies certain professional organizations as those that set specific practice
standards for the profession. For instance in its rule on administering anesthesia in office
settings, the BON identifies standards established by the American Association of Nurse
Anesthetists (AANA).8 Many of the organizations identified in section 1.5 maintain documents
that establish professional standards, as well as scope of practice. While the standards are
specifically created for the organization’s members to uphold, if effect, these standards affect all
professionals in that field. Attorneys point to applicable professional organizations’ standards in
courts of law, and the public expects all professionals to meet those standards. When
professional organizations establish professional standards, they hope to raise the bar for
practice among all practitioners so the quality and reliability meets a minimum standard, thus
serving the public while improving the status of the profession. See additional information on
professional organizations in Chapter 3.
1.5 Scope of Practice
The Board of Nursing defines APRN scope of practice as follows in Rule 221.12.
22 TAC §221.12 (BON Rule)
The advanced practice registered nurse provides a broad range of health services, the
scope of which shall be based upon educational preparation, continued advanced
practice experience and the accepted scope of professional practice of the particular
specialty area. Advanced practice registered nurses practice in a variety of settings and,
A Guide for APRN Practice in Texas
19
according to their practice specialty and role, they provide a broad range of health care
services to a variety of patient populations.
(1) The scope of practice of particular specialty areas shall be defined by national
professional specialty organizations or advanced practice nursing organizations
recognized by the Board. The advanced practice registered nurse may perform
only those functions which are within that scope of practice and which are
consistent with the Nursing Practice Act, Board rules, and other laws and
regulations of the State of Texas.
(2) The advanced practice registered nurse's scope of practice shall be in
addition to the scope of practice permitted a registered nurse and does not
prohibit the advanced practice registered nurse from practicing in those areas
deemed to be within the scope of practice of a registered nurse.
The Board of Nursing further explains APRN scope of practice as the activities that an individual
health care provider performs in the delivery of patient care. Scope of practice reflects the types
of patients for whom the advanced practice registered nurse can care, what
procedures/activities the advanced practice registered nurse can perform, and influences the
ability of the advanced practice registered nurse to seek reimbursement for services provided.
Determining the scope of practice includes: 1) Advanced practice education in a role and
specialty, 2) Legal implications (e.g. compliance with the Nursing Practice Act and Board
Rules), and 3) Scope of practice statements as published by national professional specialty and
advanced practice nursing organizations.
The Board of Nursing identifies two distinct types of scope of practice.

that represent
each advanced practice role and, in some cases, population focus.

s and
competencies within a particular APRN's role and population-focus.
Most professional organizations publish scope of practice statements. These statements are
deliberately written in a broad fashion to avoid placing inappropriate constraints on APRNs who
specialize and continue to expand their practices. Table 1.5 lists professional organizations that
publish scope of practice statements for particular types of APRNs.
Table 1.5: Professional Organizations Publishing Scope of Practice Statements
Professional
Title of Document
Website
Organization
American Academy of
Scope of Practice
www.aanp.org
Nurse Practitioners
and other position
(look under publications, then position
(AANP)
papers
statements)
American Association
of Critical-Care Nurses
(AACN)
American Association
of Nurse Anesthetists
(AANA)
Standards for Acute
and Critical Care
Nursing Practice
(includes CNS
practice)
Scope and
Standards of
Practice for CRNAs
A Guide for APRN Practice in Texas
http://www.aacn.org/WD/Practice/Content/stan
dards.for.acute.and.ccnursing.practice.pcms?
menu=Practice.
www.aana.com
(look under resources, then practice
documents)
20
American College of
Nurse-Midwives
Definition of
Midwifery Practice
American College of
Nurse Practitioners
Scope of Practice
American Psychiatric
Nurses Association
Association of
Women’s Health,
Obstetric and Neonatal
Nurses
Emergency Nurses
Association
Gerontological
Advanced Practice
Nurses Association
http://www.acnm.org/about_midwife_professio
n.cfm
www.acnpweb.org
(look under practice, then NP Scope of
Practice)
Position Statements:
Psychiatric- Mental
Health Nurse
Practice
Professional Titling
and Credentialing
Standards and
Guidelines
Scope of Practice
for the NP in the
Emergency Care
Setting
http://www.APRNa.org/i4a/pages/index.cfm?p
ageid=3335
www.awhonn.org
(under “Go Directly to:” pick “Standards and
Guidelines”)
http://www.ena.org/practice/scopes/Pages/Def
ault.aspx
Clinical Practice of
GNPs
https://www.gapna.org/component/option,com
_docman/Itemid,0/task,doc_view/gid,81/
Position papers
http://www.nacns.org/AboutNACNS/Publicatio
ns/PostionPapers/tabid/116/Default.aspx
(Formerly the National
Conference of
Gerontological Nurse
Practitioners)
National Assoc. of
Clinical Nurse
Specialists
National Association of
Neonatal Nurses
Advanced Practice
Neonatal Nurse
Role
http://www.nann.org/membership/sigs/post_st
mnts.html
National Association of
Pediatric Nurse
Practitioners
Scope and
Standards of
Practice
http://www.napnap.org/aboutUs/ourPerspectiv
e/ScopeAndStandards.aspx
Federal and state laws can place restrictions on generally accepted scopes of practice. For
example, AANP's scope of practice statement includes nurse practitioners ordering care for
home health patients. However, current federal law only allows Medicare home health agencies
to accept orders from a physician.
A facility or institution may further affect scope of practice within that workplace. The scope of
practice granted by staff within a facility or institution can be narrower than law allows, but it can
never be more liberal. However, restricting the scope of practice of APRNs within a facility or
institution may prove to be an ineffective way to manage patient care. Advanced practice
registered nurses have varied education, experiences, and competencies that should determine
A Guide for APRN Practice in Texas
21
the privileges an APRN may have, rather than blanket limitations that affect all APRNs in a
facility.
As previously mentioned, various education, clinical experiences, and competencies of an
APRN can individualize one's scope of practice. The advanced practice nursing education is the
foundation of the person's scope of practice but one can expand the scope of practice within
his/her APRN role and population-focus, as long as it remains within the boundaries of the law.
It is often more useful for individual APRNs to think about working within his/her scope of
competency versus the scope of practice. For example, two women's health nurse practitioners
working in the same practice setting could have significantly varied skills and experiences. One
may be more experienced with perinatal care while the other may be more skilled and
experienced with performing colposcopies.
In its Guidelines for Determining APRN Scope of Practice, the BON recommends asking the
following questions to help clarify whether a new activity/procedure is within the boundaries of
the APRN's scope of practice.


Is it consistent with statutory or regulatory laws?






d title or does it evolve into another
advanced practice title recognized by the board requiring additional formal education and
legal recognition?
Is it consistent with the Standards of Nursing Practice outlined in Board Rule 217.11?
h evidence-based care?
Is it consistent with reasonable and prudent practice?
Are you willing to accept accountability and liability for the activity and outcomes?
The BON also recommends maintaining good documentation regarding additional education
and proof of competency for new procedures. When deciding whether to add new patient care
activities or procedures to the practice, the BON recommends using the following approach.






Identify the benefit for a new patient care activity, taking into consideration consumer
demand, standards for safe practice, and interest of the advanced practice registered nurse.
advanced
practice registered nurse from incorporating the activity into practice.
Identify established professional standards, if available, supporting the performance of the
new activity.
Establish goals and methods for learning that encompass knowledge and skills acquisition
through which competence is attained.
Demonstrate competent performance of the procedure/activity.
Maintain records that reflect the acquisition and maintenance of competency.
The BON recognizes that APRNs' education, skills, and competency levels will vary, and holds
the individual accountable for knowing and practicing within his/her own scope of practice and
competency at all times. This is such an important concept in APRN practice that scope of
practice will be repeatedly discussed throughout this Guide for APRN Practice in Texas.
A Guide for APRN Practice in Texas
22
Chapter 2
The Foundations of APRN Practice
The Laws, Rules and Agencies that Govern
APRN Practice in Texas
Key Points

Laws may be classified into five basic categories: Constitutional, Statutory, Administrative,
Case and Common laws.

Texas and Federal laws are organized into Codes.

The Nursing Practice Act (NPA) and Board of Nursing (BON) Rules and Regulations serve
as the legal foundation for APRN practice in Texas.

The NPA is a statute (law) located in Chapter 301 of the Texas Occupations Code.

The NPA is law that cannot be changed or waived by any agency including the Board of
Nursing. Any changes must occur through legislation.

All state agency rules are located in the Texas Administrative Code (TAC).

The BON exists to protect the public through implementing and enforcing the NPA. The BON
does not protect the nurse or promote the nursing profession.

BON rules require APRNs to know and conform to local, state, and federal laws.

APRNs should refer to the BON Rules and Regulations to find specific guidance on
requirements for their education, licensure, and practice.

All BON rules that apply to RNs also apply to APRNs.

The BON issues guidelines and position statements that impact an APRN's practice.

To review the most current version of the BON Rules and Regulations, the nurse should
always read the HTML version that is linked from the BON's website to the Secretary of State’s
official website for state agency rules.

BON meetings and advisory committee meetings are open to the public.

Consult with professional organizations for questions pertaining to reimbursement or scope
of practice.

The Texas Health & Human Services Commission (HHSC) is the sole agency responsible for
administering the Texas Medicaid Program.

The answer to many reimbursement questions can be found in rules promulgated by the
Texas HHSC (Medicaid) and federal Centers for Medicare and Medicaid Services (Medicare),
and in the Texas Medicaid and Medicare Manuals.

Federal laws supersede state law.
A Guide for APRN Practice in Texas
23
Introduction
Chapter 1 contains numerous references that link to certain laws or rules that govern or impact
advanced practice registered nurses. The BON requires all RNs and APRNs to be
knowledgeable about those laws and rules. However, many APRNs find it difficult to access
and understand the legal aspects of their practice. They describe the rules as “so much mumbo
jumbo." The major goal of this guide is to help APRNs understand those laws and rules. This
chapter explains the structure of law, including the rules and the agencies that govern APRN
practice. It facilitates access to legal information and helps APRNs stay current with the
changing legal landscape that governs their practice.
2.1 Structure of Federal and State Governments
There are three branches of government:
1. Judicial (courts): federal, state, and local. The U.S. Supreme Court is the supreme authority
for laws in the United States.
2. Executive: The President has authority to sign or veto federal laws and is ultimately
responsible for overseeing the operations of federal agencies and ensuring those agencies
are enforcing the law. On the state level, the Governor is the chief executive officer and has
similar authority over state government.
3. Legislative: The Senate and House of Representatives create statutory laws. The federal
legislative branch is collectively referred to as the Congress. The state legislative bodies are
usually referred to as the state legislature or state assembly. In Texas, it is the state
legislature.
2.2 Development of Laws
Laws may be classified into five basic categories.
1. Constitutional: U.S. and state
2. Statutory: federal, state, and local
3. Administrative: rules and regulations from administrative federal or state agencies
4. Case: federal or state courts
5. Common laws xxxvi
The U.S. Constitution is the supreme authority for interpretation of U.S. laws. It establishes
standards for certain basic rights that cannot be taken away and sets the foundation upon which
our legislative, judicial, and executive branches are built. Each of the fifty states has its own
state constitution modeled after the U.S. Constitution. States can create their own laws as long
as their laws do not conflict with federal law or violate the U.S. Constitution or state’s
constitution.
Statutory laws (usually referred to as statutes or laws) govern our daily lives. These laws are
created by federal, state, or local elected officials. The U.S. statutes are very general and apply
to either federal districts or to everyone in the United States. State statutes apply to those who
live within that state. Local statutory law (also known as ordinances) governs counties, cities,
and towns. If there is a conflict between federal and state statutes, the federal statute always
supersedes. A similar principle applies to state statutes and local ordinances. The state statute
always supersedes.
xxxvi
Roche, Brien A. (2004). Law 101. Naperville, Illnois: Sphinx Publishing.
A Guide for APRN Practice in Texas
24
Administrative law is also known as rules and regulations. Federal or state administrative
agencies are given the authority to promulgate and enforce rules and regulations. An example
of an agency at the federal level is the U.S. Drug Enforcement Administration (DEA). The Texas
Board of Nursing is an example of a Texas state agency. To avoid confusion, future references
to administrative law in this manual will always refer to "rules and regulations" or simply as
"rules".
Case law is based on decisions by the court. Roe v. Wade is a well known example of case law
created by a U.S. Supreme Court decision. A 1934 Superior Court of California case, ChalmersFrancis v. Nelson is an example of a state court case important to nurse anesthesia practice.
Common laws can be traced to times when there were no legal precedents to guide the legal
system. Judges used common sense to create a legal precedent and those legal precedents
continue to guide judges today.
2.3 What APRNs Should Know about the Organization of Texas Law
The Difference between Texas State Statutes and Rules
Bills that pass the Texas Legislature and are not vetoed by the Governor become state statutory
laws, also referred to as Texas statutes or laws. These laws are written in very general
language because the legislative body does not have the expertise or time to enact detailed
statutes that apply to every issue that may arise. Administrative state agencies do have the
expertise and time to address all the specific methods and aspects of how the laws are
implemented. Therefore, through statutes, the legislature directs a state administrative agency
to adopt and implement rules and regulations to define the specific issues and implement the
statutory law. In other words, if one wants to know what the legislature directed the state agency
to do, then one refers to the statute. If one wants to know the specifics of what the person is
required to do to be in compliance with a law, refer to the rules and regulations.
The Organization of Texas Statutes
In order to easily access laws and rules that affect APRNs' practices, it helps to understand how
laws are organized. Both federal and Texas laws are organized into codes that group laws into
roughly related topics. These codes are grouped in a similar fashion as multi-book volumes.
Currently there are 29 Codes within Texas statutes. The practice acts of most regulated
occupations are contained in the Texas Occupations Code. The Codes are then subdivided into
Titles, Chapters, Subchapters and Sections.
There are 15 Titles within the Texas Occupations Code. Title 3, "Health Professions", contains
all the practice acts, including the Nursing Practice Act, for the health professions regulated in
Texas. Titles are further divided into Chapters. There are 702 Chapters within Title 3 that define
the practice of health care professions. Each regulated health care profession has its own
practice act within the Chapters. The Nursing Practice Act is Chapter 301. Therefore, any
citation numbers beginning with 301 always refer to the Nursing Practice Act. The specific
Sections are further divided into subsections, subdivisions, paragraphs, and subparagraphs that
are denoted by a series of small letters, numbers, capital letters, and small Roman numerals.
An APRN will be able to locate a statute easily by knowing the code and section.
The Codification Process
Texas law has not always been organized into Codes. Originally, almost all of Texas civil laws
were contained in Vernon's Civil Statutes. Currently, very little law of significance to APRNs
remains in Vernon's. If researching some portions of the Insurance Code, there are portions of
A Guide for APRN Practice in Texas
25
insurance law that are not codified and researchers will find those portions listed as "Insurance
Code - Not Codified".
Each legislative session a portion of the law in Vernon's Civil Statutes is converted to language
in a Texas Code. This process is known as codification. The Nursing Practice Act was codified
during the 76th Legislature in 1999. Other health professional practice acts were also codified
that year.
One must understand that the law is dynamic and ever-changing. Citations will change from
time to time, and knowing the structure of the law enables one to find the needed reference, just
like the Dewey Decimal System assists one in finding books in a library.
Legal Citations
Legal citations are the legal references that contain the information to locate a particular part of
the law. The citations for statutes first contain one or two section symbols that look somewhat
like two letter Ss stacked on top of each other. One section mark, §, stands for one "Section"
and two section marks in a row, §§, stands for two or more "Sections."
Following the § mark are numbers followed by a decimal point that denotes the chapter. The
numbers following the decimal point specify the number of the section. A citation for a statute
frequently used in the first chapter of this manual is §301.152, Texas Occupations Code. This
citation is referring to Chapter 301, Section 152 of the Texas Occupations Code.
Sometimes following the chapter and section numbers, citations include additional letters,
numbers, or Roman numerals in parentheses. These are citations that lead to increasingly
specific language in the law. For instance, if one needs to know whether a physician must sign
a patient transfer, or if an APRN could sign the transfer form, the information can be found in
§241.027(c)(2) and (3), Texas Health & Safety Code. This citation indicates that one does not
need to read subsections (a) or (b) to get the answer. Persons researching this information may
go directly to Chapter 241, Section 027, Subsection (c) and read Subdivisions (2) and (3).
At the end of each section one sees dates and perhaps old citations from Vernon's Civil
Statutes. This information refers to dates this section of the law was amended and codified. It
can be useful information if trying to find when a particular provision was added to the law, or if
one is researching an outdated reference to the Nursing Practice Act when it was part of the
Vernon's Civil Statutes.
How to Find a Citation for a Texas Statute
All Texas laws are available on the Internet through the Texas Legislature Online (TLO)
Website, www.capitol.state.tx.us. Click on "Statutes" in the middle of the home page. Then click
the plus sign in front of “TEXAS STATUTES.” A list of all Codes and Vernon's Civil Statutes will
appear. Go to the particular Code that is cited, and click on it. A drop down menu of all the
chapter numbers and chapter titles within that Code will appear. Simply scroll down to the cited
section number and click on it. A box containing the language appears.
If one does not have a specific citation, the search to find specific information becomes more
difficult. However, it certainly can be done. The titles of codes and chapters help locate the
information. However, to save time, if someone bases an opinion or ruling on a requirement in
the law, be sure to ask for the legal citation. With that reference, you will be able to readily
access the needed information.
A Guide for APRN Practice in Texas
26
2.4 What APRNs Should Know About the Nursing Practice Act
The Nursing Practice Act is the most important statute for the nursing profession. The purposes
of the act are listed below.
 Protect the public at large
 Define the practice of nursing
 Guide scope of practice issues for the nursing profession
 Regulate nursing through the standards of care xxxvii
The Nursing Practice Act is law that cannot be changed or waived by any agency, including the
Board of Nursing. Any changes must occur through legislation.
The Texas Nursing Practice Act protects the title "nurse" and specifies that only persons
licensed by the Board may refer to themselves as "nurses."xxxviii Even those referring to
themselves as a “nursing assistant” or “nurse’s aide” may only do so if working under the
delegation of a RN. The NPA grants authority to the Texas Board of Nursing to regulate
vocational, professional and advanced practice nursing. The BON does not have jurisdiction
over persons that do not have a nursing license. Therefore, the BON cannot take direct action
against nurse impostors. The BON files a complaint against nurse impersonators in the local
jurisdiction where the offense occurred and the case is handled by the local District or County
Attorney.
Provisions in the Nursing Practice Act Related to APRNs
If looking for specific information on APRNs in the Nursing Practice Act, the search can be
difficult because all the language related specifically to APRNs is contained in a brief section,
§301.152, Texas Occupations Code, titled, "Rules Regarding Specialized Training." This
section, copied below, briefly defines "advanced practice registered nurse" to include nurse
practitioners, nurse-midwives, nurse anesthetists and clinical nurse specialists, and requires the
Board of Nursing to adopt rules regarding the education, training and practice of these nurses.
§301.152, Texas Occupations Code (Nursing Practice Act)
RULES REGARDING SPECIALIZED TRAINING. (a) In this section, "advanced practice
nurse" means a registered nurse approved by the board to practice as an advanced
practice registered nurse on the basis of completion of an advanced educational
program. The term includes a nurse practitioner, nurse midwife, nurse anesthetist, and
clinical nurse specialist. The term is synonymous with "advanced nurse practitioner."
(b) The board shall adopt rules to:
(1) establish:
(A) any specialized education or training, including pharmacology, that a
registered nurse must have to carry out a prescription drug order under
Section 157.052; and
(B) a system for assigning an identification number to a registered nurse who
provides the board with evidence of completing the specialized education and
training requirement under Subdivision (1)(A);
(2) approve a registered nurse as an advanced practice nurse; and
xxxvii
Guido, G. W. (2006). Legal & Ethical Issues in Nursing. 4th ed. Upper Saddle River, New Jersey: Pearson
Education Inc.
xxxviii
§301.002 (3), Texas Occupations Code
A Guide for APRN Practice in Texas
27
(3) initially approve and biennially renew an advanced practice registered nurse's
authority to carry out or sign a prescription drug order under Chapter 157.
(c) At a minimum, the rules adopted under Subsection (b)(3) must:
(1) require completion of pharmacology and related pathology education for initial
approval;
(2) require continuing education in clinical pharmacology and related pathology in
addition to any continuing education otherwise required under Section 301.303;
and
(3) provide for the issuance of a prescription authorization number to an
advanced practice registered nurse approved under this section.
(d) The signature of an advanced practice registered nurse attesting to the provision
of a legally authorized service by the advanced practice registered nurse satisfies any
documentation requirement for that service established by a state agency.
Note that the definition of "advanced practice registered nurse" states that the term is
synonymous with "advanced nurse practitioner." That information is essential because the BON
used the term "advanced nurse practitioner" as the umbrella term for APRNs prior to 1994.
While the terminology was changed, there are still some old laws and outdated rules from other
state agencies that still use the old terminology. In a future Legislative Session, it is anticipated
that this section of the NPA will be amended to establish “advanced practice registered nurse”
as the official term encompassing the four advanced practice nursing roles. If so, then
“advanced nurse practitioner,” “advanced practice registered nurse” and “advanced practice
registered nurse” will be recognized as synonymous terms.
Also note that this section directs the BON to adopt rules pertaining to certain aspects of
education, training, and practice regarding prescriptive authority. At the same time this section
also grants the BON authority to adopt rules on other requirements regarding APRN education,
training, and practice. Finally, Subsection (d) is a directive to other state agencies stating that if
the APRN provides a service that is in the APRN's scope of practice and the service can legally
be provided by an APRN (i.e., there is no statutory requirement that only a physician can
provide the service), then the agency cannot require additional documentation by a physician or
a physician's co-signature.
2.5 What APRNs Should Know about the Board of Nursing
Just like any state agency that licenses occupations, the primary purpose of the Board of
Nursing (BON) is public protection. Many people confuse the state agency that regulates a
profession with a professional organization. This is a serious misconception.
It is vitally important that all nurses have a clear understanding of the role of the BON and what
it can and cannot do. The BON protects the public and sets the minimum standards for nurses.
It does not protect the nurse. If the APRN wants a strong organization to protect his/her
professional interests and set higher standards for the profession, he/she should join
professional organizations discussed in Chapter 3.
The BON exists to ensure that all nursing licensees attain and maintain a minimum level of
education and competency appropriate to the level of their licenses to practice. The BON also
promotes safe and ethical nursing practice by adopting rules that set the minimum standards for
nursing practice. The agency investigates all complaints and has the authority to discipline or
revoke a license to practice if the nurse fails to provide safe and effective care in accordance
A Guide for APRN Practice in Texas
28
with the Nursing Practice Act and/or the BON Rules and Regulations. There is much more
information available on the Board and it disciplinary process in Chapter 8.
The following is the BON's mission statement on the BON’s website.
The mission of the Board of Nursing for the State of Texas is to protect and promote the
welfare of the people of Texas by ensuring that each person holding a license as a nurse
in the State of Texas is competent to practice safely.
The Board further states that it “fulfills its mission through the regulation of the practice of
nursing and the approval of nursing education programs. This mission, derived from the Nursing
Practice Act, supersedes the interest of any individual, the nursing profession, or any special
interest group.”xxxix
The BON members and staff take their mission very seriously. Based on actions taken by the
Board over the past few years, interpretations tend to be very literal and requests for waiving
any rules are generally denied.
In general, BON members and staff go out of their way to be responsive and helpful to
everyone. However, frustration can occur when a nurse has inappropriate expectations and
does not understand the limitations placed on state agency staff.
There are limits in the type of guidance that staff can provide for an APRN's practice. Staff can
cite and explain how the Board applies the rules, guidelines, and board position statements but,
unless an official interpretation exists, they cannot interpret the law. Requests for an official
interpretation can be made, but licensing boards do not have the luxury of giving liberal
interpretations so if an APRN asks for an official interpretation, he/she will tend to get a
conservative answer. Official interpretations can take several weeks to months to obtain. The
BON staff can give guidance on scope of practice issues for APRNs, but only within broad
parameters, since an individual APRN’s scope of practice varies with education and training.
It is very important for APRNs to understand what the BON can and cannot do. Billing and
credentialing issues for APRNs are outside the Board’s purview, and must be handled through
professional organizations. The Texas Medical Board (TMB) regulates physicians and therefore
individuals with questions regarding the role of delegating physicians must be referred to TMB
rules.
The Board and Advisory Committees
While the BON Executive Director, Kathy Thomas, and her staff run the day-to-day operations
of the agency, the oversight of the BON is the responsibility of the board of nurses and public
members appointed by the Governor of Texas. The 13-member Board includes one APRN, two
practicing RNs (not educators), three practicing LVNs (not educators), and three educators
(BSN education, ADN education, LVN education).xl Board meetings are held quarterly and are
open to the public. The meeting dates and agendas, as well as all handouts on each agenda
item, are available on the BON website.xli
In addition, the Board has several advisory committees that represent nurses from education,
practice, and professional organizations in Texas. These advisory committees receive charges
(assignments) from the Board and are asked to research a variety of issues and provide the
xxxix
BON. News for Consumers. Accessed: http://www.bon.state.tx.us/about/consumernews.html.
BON. Members of the Board. Accessed http://www.bon.state.tx.us/about/boardmembers.html.
xli
BON. Meetings and Events. Accessed: http://www.bon.state.tx.us/about/events.html.
xl
A Guide for APRN Practice in Texas
29
BON with recommendations. As the name indicates, these committees are purely advisory in
nature. The BON makes any decisions impacting nursing practice. One advisory committee that
impacts advanced practice registered nurses is the Advanced Practice Nursing Advisory
Committee (APRNAC). APRNAC meetings are held three to four times a year and are open to
the public. Contact [email protected] to find when a future meeting is scheduled.
The BON Website & Other Resources
http://www.bon.state.tx.us/
The BON has very important information on its website. In addition to links to the NPA and BON
Rules and Regulations, there is online verification for all nurses licensed by the Board. Also
available are publications, including statistical information regarding nurses and APRNs and
BON position papers. To gather in-depth knowledge of the agency, refer to the BON’s Strategic
Plan for Fiscal Years 2009-2013.9 Board meetings and workshops are listed under “BON
Events.”
All nurses should read the quarterly publication, Texas Board of Nursing Bulletin. This
publication is essential for keeping nurses up to date. The bulletin contains information on new
laws and rules. It answers questions about nursing practice and almost always contains at least
one item of particular interest to APRNs. The Nursing Bulletin is mailed to each nurse's address
that is listed with the board. If an APRN fails to receive this publication, it is most likely that
he/she moved and did not notify the BON of the new location. These quarterly newsletters,
including past issues, are available at www.bon.state.tx.us/about/newsletters.html.
The BON conducts nursing practice workshops throughout the state. Every few years there are
workshops that specifically discuss advanced practice nursing. To obtain information on
workshops that will be offered, go to the events section of the BON website.10
APRN Webpage
http://www.bon.state.tx.us/practice/gen-APRN.html
There is a page on the BON website that makes it easy for APRNs to access the forms and
information they need. It contains lists of rules, position papers, and guidelines that directly
pertain to APRNs and includes links to the documents. All APRNs should put this page on their
list of favorites and check it frequently.11
The Sunset Review Process
http://www.sunset.state.tx.us/
In 2006 - 2007, the Texas Board of Nursing completed a review by the Sunset Advisory
Commission. In Texas, the Sunset Advisory Commission usually reviews each state agency and
its authorizing legislation every 12 years. However, the last review of the BON and the Nursing
Practice Act was completed in 1993. Due to the consolidation of the LVN and RN Boards in
2003, the Sunset Review for the BON was postponed until 2007. The next Sunset Review of the
BON is scheduled for 2017.
The purpose of the review is to ensure the agency is meeting its mission as efficiently as
possible and that the agency's mission is still necessary and does not duplicate functions
performed by any other state agency. The Sunset Commission recommends changes in the
agency's authorizing legislation in order to bring the language up to date and ensure the agency
has the statutory authority it needs to achieve its mission.
A Guide for APRN Practice in Texas
30
The Sunset process is a series of steps that takes approximately 21 months to complete. The
first step is submission of a Self-Evaluation Report (SER) to the commission. The SER details
all activities of the agency.
As part of the process, the Sunset Commission conducts an onsite review the following spring.
Then in the fall prior to the legislative session, the Sunset staff publish a report on its review of
the BON that includes staff's recommendations for changes in the agency’s enabling legislation.
In the case of the Board of Nursing, that is the Nursing Practice Act (NPA). The
recommendations also encompass the agency’s structure and operations. The process includes
a public hearing, usually in October or November during which the Sunset Commission takes
public testimony. In December, the Sunset Commission members vote on staff
recommendations. Those recommendations are then incorporated into the agency's Sunset bill.
In the case of the BON, the agency’s Sunset bill was introduced during the 2007 Legislative
Session by a senator and a representative who were members of the Sunset Commission. The
bill went through the same legislative process that every other bill must traverse. The one
important difference in a Sunset Bill is that the Sunset Legislation renews the agency's
existence for another 12 years. If the Sunset legislation fails to pass, the agency has a year to
dismantle and cease to exist. In the case of the BON, that would mean that nursing would not
be regulated in Texas. Obviously legislators would not allow that to happen, so Sunset
Legislation will pass and be signed by the Governor. Because of this, the Sunset Commission
rejects any changes in the practice act that would change the scope of practice for providers.12
The Sunset Commission's website contains much more detail on the Sunset process. It also
lists the Sunset Commissioners and staff. All Sunset Commission reports also may be accessed
from the home page.
2.6 What APRNs Should Know About Texas Rules and Regulations
As explained at the beginning of this chapter, the rules and regulations promulgated by a state
agency contain details about requirements to comply with the law. In the case of APRNs, the
half page of the NPA that authorizes the BON to regulate "nurses with specialized training"
becomes 3 chapters and 39 pages that delineate the education, authorization, and practice
requirements for APRNs.13
Rule Revisions
Unlike the law that can only be changed by the legislature, rules are revised on a continuous
basis. While many rule changes are prompted by changes in the statute, state agencies are
also required to review all of their rules every four years to ensure that the rules are current.
Therefore most agencies, including the BON, review their rules on a regular schedule.
Amendments to rules may be published in the Texas Register at any time. The public is
normally given 30 days to submit comments on the rule amendments. After the comment period
ends, agency staff reviews the comments and makes changes as it finds appropriate. In the
case of the BON, those rules go back to the board for final adoption. The adopted rules are
published in the Texas Register and then the rules are changed on the BON's Web Site. For
more information relating to the Texas Register and the rule revisions process, see section 2.8
in this chapter.
Citations for Rules & Regulations: The Texas Administrative Code
All the rules for every state agency and office are contained in the Texas Administrative Code
(TAC). Anytime one sees a reference to TAC, it is a reference to a state agency rule.
A Guide for APRN Practice in Texas
31
The Texas Administrative Code is divided into Titles, Parts, Chapters, and Sections. Citations
are written in the following order.
1. Number of the title
2. TAC or Texas Administrative Code
3. §, the symbol for section, or §§ if multiple rules are being cited
4. Chapter number followed by a decimal point
5. Section number
Therefore, the full citation for a particular rule is written, 22 TAC §221.1. This citation refers to a
rule in the BON Rules and Regulations. The rules for the BON, along with other examining
(occupational) boards are contained in Title 22 of the Texas Administrative Code. There is no
direct reference to the part number in the citation because all of the chapters within each title
are numbered serially. As a consequence, it is not essential to have the part number in the
citation. Title 22, TAC, Chapters 211 through 227 contain BON Rules and Regulations.
Locating Particular State Agency Rules
The Secretary of State is responsible for updating the Texas Administrative Code. Therefore, it
is the Secretary of State's website in which one finds Texas state agency rules online.xlii On the
home page, click the “Texas Register” icon and select "Texas Administrative Code." From the
pull down menu go to the box on the right and select "View the current Texas Administrative
Code." The titles are listed. Select the number that corresponds with the first number in the
citation.
Once the title is selected, a list of part numbers and names appear. Since there is no part
number in the citation, one must read the list of names and select based on that. For instance,
the BON Rules are contained in "PART 11: BOARD OF NURSING." The Medical Board Rules
are contained in "Part 9: Texas Medical Board." As long as one knows the name of the agency,
there is usually no problem in identifying the appropriate part.
After selecting the correct part, a list of the chapters appears. Select the chapter that
corresponds to the number before the decimal point. For instance, if looking for a citation
written, 22 TAC §213.4, then select, "CHAPTER 213: PRACTICE AND PROCEDURE." After
selecting the appropriate chapter, then a list of all the sections in that chapter appear. Simply
select the number that corresponds to the numbers in the citation that follow the decimal point.
Each of these sections is referred to as a rule.
Generally, the rules for each agency are also linked from that agency's website. If given a
choice of reviewing an HTML or PDF version, unless trying to find a particular page number,
select the HTML version. The HTML version links to the Secretary of State's Website and is
updated as soon as possible after newly adopted rules are published in the Texas Register. The
PDF versions are pictures of published versions and are only updated on a periodic basis,
usually annually.
2.7 BON Rules, Guidelines, & Position Statements Referencing
APRNs
Some APRNs make the mistake of assuming that BON Rules that do not specifically mention
APRNs do not apply to APRNs. It is vital for APRNs to understand that they are first licensed as
registered nurses and therefore all the rules that apply to RNs also apply to APRNs. APRNs are
xlii
Access all titles of the Texas Administrative Code at http://info.sos.state.tx.us/pls/pub/readtac$ext.viewtac.
A Guide for APRN Practice in Texas
32
referenced in specific rules because those rules do not apply to RNs without APRN
authorization.
The BON Rules and Regulations listed on the BON Web Site that specifically relate to advanced
practice nursing are the following:






Rule 221 - Advanced practice registered nurses. Contains minimum educational, practice,
and certification requirements to be authorized and to maintain authorization.
Rule 222 - Advanced Practice Nurses with Prescriptive Authority. Outlines minimum
requirements and the process to obtain a prescriptive authority number and minimum
requirements to write prescriptions.
Rule 219 - Advanced Practice Nursing Education Programs. Outlines requirements of
APRN educational programs in Texas that are not nationally accredited.
Rule 217.11 - Standards of Nursing Practice. Lists the minimum standards that apply to all
nurses in Texas, and specifically to RNs and APRNs.
Rule 217.12 - Unprofessional Conduct. Specifies the types of actions that would violate the
standards of nursing practice.
Rule 216 - Continuing Education. Specifies the requirements for ongoing education to
maintain authorization to practice as an APRN and to maintain prescriptive authority
authorization.
When the BON refers to Rule 221, it is the same as saying "Chapter 221 of the BON Rules and
Regulations." It is also synonymous with the legal citation, 22 TAC §221.
Many of these rules were already extensively cited in Chapter 1, and they will continue to be
referenced in future chapters. It is a constant reminder that the Nursing Practice Act and the
resulting rules promulgated by the BON serve as the foundation for advanced nursing practice.
All of the information in this APRN Guide regarding educational requirements, authorization to
practice, and minimum requirements for advanced practice nursing stem directly from the BON
Rules and Regulations.
BON Position Statements and Guidelines
In addition to rules and regulations, state agencies also issue guidelines and position
statements. These documents offer additional guidance on the agency's interpretation on
particular issues and can offer essential guidance to those being regulated by the agency.
Therefore, all nurses should be familiar with the guidelines and position statements written by
the BON.
“Guidelines for determining Scope of Practice with FAQs related to Scope of Practice” is on the
BON’s Advanced Practice Nursing Website along with the following position statements.

15.9 Performance of Laser Therapy by RNs or LVNs
 15.12 Use of DSM-IV Diagnoses
 15.17 Board of Nursing/Board of Pharmacy, Joint Position Statement, Medication Error
 15.18 RNs Carrying Out Orders from Advanced practice registered nurses
 15.22 APRNs Providing Medical Aspects of Care for Themselves or Others With Whom
There is a Close Personal Relationship
 15.23 The RNs Use of Complementary Modalities
A Guide for APRN Practice in Texas
33
2.8 The Texas Register
As mentioned previously, state agency rules and regulations are constantly changing. As a
matter of fact, Texas state law requires that each state agency reviews and updates their rules
once every four years.14 The process by which rules are revised is open to the public. The
Texas Register is the official rulemaking publication for all Texas state agencies and executive
branch offices. It is published each Friday and is available online via the Texas Secretary of
State's Web Site, www.sos.state.tx.us/texreg/index.shtml. There is a four step process for rules
to be implemented by a Texas state agency:
1. The agency publishes the proposed rule in the Texas Register
2. The public is given an opportunity to comment on the proposed rule (usually 30 days). Rules
that are contested are often also the subject of public hearings.
3. The agency reviews comments and changes proposed rules if the agency agrees with the
comment. If comments are extensive, the agency has the option of withdrawing the original
proposal and republishing with the extensive changes as proposed rules.
4. The rules are adopted and published in the Texas Register with responses to comments.15
There is often an opportunity for stakeholders to be involved in developing rules before they are
proposed in the Texas Register. State agencies will often convene groups of stakeholders as
workgroups to develop new rules or will seek comment from organizations and interested
individuals before rules are proposed. Most rule changes are reviewed by one or more
committees and by the board or council prior to publishing the new or amended rule in the
Texas Register.
Rule changes involving APRNs are reviewed first by the BON's Advanced Practice Nursing
Advisory Committee (APRNAC). Then, the proposed rule changes are reviewed by the agency's
legal staff prior to being finalized and presented to the Board of Nursing. If approved by the
Board, the proposed rules will proceed through the four-step process outlined above.
There are four categories of rules published in the Texas Register: emergency, proposed,
withdrawn, and adopted. Occasionally agencies must adopt rules on an emergency basis. This
may happen when a law goes into immediate effect and the agency is directed to adopt rules, or
the agency thinks a threat to the public safety exists under the current rules. The emergency
rule is in effect immediately, but only for a maximum of 180 days.16 To become an adopted rule
during the 180 days the rule must be proposed in the Texas Register and go through the
standard process of adoption.
Proposed and adopted rules are always preceded by a preamble. This is a section that explains
why and under what legal authority the agency is taking the proposed action. The preamble for
all emergency and proposed rules also contains the length of the comment period, the staff
member receiving comments, and that person's contact information. With rare exceptions, the
comment period is 30 days from the date of publication in the Texas Register. Comments
received after the 30th day will not be considered. If the 30th day falls on a weekend or holiday,
agencies may accept comments received on the following business day. However, one should
always call to be sure that is the case. Since many agencies now accept comments by email, it
is increasingly common that comments received after the 30th day are not accepted.
The preamble for all adopted rules contains a list of those that submitted comments and a
summary of the comments with staff responses. The staff may accept the comment and make
changes accordingly, or reject the comment and retain the language as proposed. If the rule is
changed, then the text of the rule is republished. If no changes are made, then the text is not
A Guide for APRN Practice in Texas
34
re-published and the reader is referred to the issue of the Texas Register in which the rule was
proposed.
In addition to emergency, proposed, withdrawn, and adopted rules, the Texas Register contains
proclamations and appointments made by the Governor, summaries of requests for opinion
submitted to the Attorney General, and summaries of opinions issued by the Attorney General's
Office. It also contains notices of rule reviews and public hearings.
2.9 TNA's Annotated Guide to the Nursing Practice Act & BON Rules
Even though state agencies are mandated to write rules in plain English, many people still have
difficulty understanding them. The problems are even greater when trying to understand the
Nursing Practice Act. To address that problem, Texas Nurses Association (TNA) publishes the
Annotated Guide to the Texas Nursing Practice Act. This guide has side-by-side explanations of
each provision in both the statute and rules. In addition, it contains position statements and a
separate section for advanced practice nursing. The Annotated Guide can be purchased online
through TNA's website.17
2.10 Other Texas Agencies, Statutes & Rules Impacting APRNs
An APRN’s practice is impacted by many other Texas state agencies, laws and rules in addition
to the NPA and BON Rules and Regulations. BON Rule §221.13 (a) requires APRNs to
understand these statutes and rules and conform their practices to those requirements.
22 TAC §221.13 (a) (Board of Nursing Rule)
(a) The advanced practice nurse shall know and conform to the Texas Nursing Practice
Act; current board rules, regulations, and standards of professional nursing; and all
federal, state, and local laws, rules, and regulations affecting the advanced role and
specialty area. When collaborating with other health care providers, the advanced
practice nurse shall be accountable for knowledge of the statutes and rules relating to
advanced practice nursing and function within the boundaries of the appropriate
advanced practice category.
The following is not a complete list of all the Texas state agencies, statutes and rules that might
impact an individual APRN's practice. However, it includes those that affect most APRNs. Also
included are certain requirements for physicians who delegate prescriptive authority.
Laws Pertaining to All Health Care Providers
The first chapters in Title 3, Texas Occupations Code, apply to all types of health care
providers. APRNs should be familiar with each of the chapters in the Texas Occupations Code
listed below. APRNs with doctoral degrees should particularly note section 104.004, OTHER
PERSONS USING TITLE “DOCTOR.”

CHAPTER 102. SOLICITATION OF PATIENTS
 CHAPTER
103. RIGHT TO OBJECT TO PARTICIPATION IN ABORTION PROCEDURE

CHAPTER 104. HEALING ART PRACTITIONERS

CHAPTER 105. UNPROFESSIONAL CONDUCT BY HEALTH CARE PROVIDER

CHAPTER 106. GENERAL REGULATORY AUTHORITY REGARDING HEALTH CARE
PRACTITIONERS' USE OF INTERNET

CHAPTER 107. INTRACTABLE PAIN TREATMENT
A Guide for APRN Practice in Texas
35

CHAPTER 108. LICENSE SUSPENSION OR REVOCATION REQUIRED FOR CERTAIN
DRUG FELONY CONVICTIONS

CHAPTER 109. RELEASE OF SEX OFFENDER TREATMENT INFORMATION

CHAPTER 111. TELEMEDICINE AND TELEHEALTH18
The Texas Medical Board (TMB)
www.tmb.state.tx.us
The TMB regulates all physicians who delegate prescriptive authority and other medical acts to
APRNs. The TMB does not have any authority to adopt rules to regulate APRNs or any
disciplinary authority over APRNs practicing in Texas. It is the Medical Practice Act that contains
all the specific information about the sites in which a physician may delegate prescriptive
authority and what constitutes adequate supervision of the APRN to whom prescriptive authority
is delegated. Therefore, the APRN must be very familiar with references to the Medical Practice
Act (MPA) and TMB rules in Table 2.1.19
Table 2.1 Medical Practice Act and TMB Rules
Subject
Medical Practice Act
TMB Rule/s
Reduced CE for physician
volunteering in medically
underserved site.
§156.056, Texas
Occupations Code
Delegation of prescriptive
authority in certain sites.
Includes requirements to
maintain certain records of
supervision and quality
assurance (subsection f), and
provisions for alternate
supervision when the delegating
physician is unavailable
(subsection g)
§157.051-0541, Texas
Occupations Code
§157.055,Texas Occupations
Code, contains information
on protocols.
Information to include on a
prescription form
§157.056
Texas Occupations Code
Obtaining a waiver of certain
site-based requirements.
Delegation of the ordering of
drugs and devices to deliver
anesthesia by a CRNA
Delegation of ordering controlled
substances
for CNMs
Limitation of liability for
physicians delegating
prescriptive authority
§157.0542
Texas Occupations Code
§157.058
Texas Occupations Code
22 TAC §193.6 (i)
§157.059
Texas Occupations Code
22 TAC §193.6(l)
§157.060
Texas Occupations Code
22 TAC §193.6(m)
Regulation of certain pain
management clinics instituted by
Adds Chapter 167, Texas
Occupations Code (At
TMB Rules to implement
registration of pain management
A Guide for APRN Practice in Texas
22 TAC §166.2 (not reflected in rule
but based on law, TMB must accept
volunteer practice in a MUA as a
substitute for up to 12 hours
informal self-study)
22 TAC §193.2 contains definitions
applicable to prescriptive authority.
Refer to definitions (1), (3)-(7), (10),
(11)
22 TAC §193.6(a)-(h) contains
rules for sites in which a physician
may delegate prescriptive authority
22 TAC §193.6(n) contains specific
limitations on delegating controlled
substances
22 TAC §193.6(h) - Refers to rules
by the Texas State Board of
Pharmacy.
22 TAC §193.6(k)
36
SB 911 effective 9-1-09. Pain
management clinics are those in
which a majority of patients are
issued a prescription for
opiods,benzodiazepines,
barbiturates, or carisoprodol and
do not offer another form of
therapy.
publication, the new chapter
was not yet added to the
statutes.)
clinics must be adopted by March
1, 2010. It is expected that those
rules will be added to 22 TAC,
Chapter 192.
Because certain issues are not addressed in Nursing Board rules or position statements,
APRNs may look to the TMB rules as the standard that the APRN should meet. However, this
should not be construed to indicate that the TMB regulates APRNs. However, the BON could
use these rules in determining the standard it might apply to APRN practice since BON rules
clearly state that APRNs should follow all applicable state and federal rules. Table 2.2 contains
examples.
Table 2.2 Medical Practice Act, Related Statutes & TMB Rules that Can Guide APRN Practice
Subject
Statutes
TMB Rule/s
Physician-Patient Communication
Confidentiality Advertising
professional services
Medical Records
Treatment of Pain
Complementary and Alternative
Medicine
Immunization of Persons
Chapter 159, Texas
Occupations Code
§102.053, Texas Occupations
Code.
§151.002 (9),
Texas Occupations Code
Chapter 107,
Texas Occupations Code
22 TAC Chapter 164
22 TAC Chapter 165
22 TAC §170
22 TAC Chapter 200
§161.0052, Texas Health &
Safety Code
22 TAC §193.12
Texas State Board of Pharmacy (TSBP)
www.tsbp.state.tx.us
The TSBP regulates the practice of pharmacies and pharmacists. The rules specify the
requirements for a valid prescription that a pharmacist may fill, and therefore TSBP rules directly
impact APRNs’ practices because practitioners must write the prescription accordingly. TSBP
Rules are also derived from the Dangerous Drugs and Controlled Substances Acts in the Health
and Safety Code.
The Dangerous Drug, Controlled Substances and Pharmacy Practice Acts include APRNs in the
definition of a practitioner, and therefore specifically allow a pharmacist to fill prescriptions or
orders signed by APRNs. The APRN must not only be familiar with the following references to
the Pharmacy Practice Act and TSBP rules, but meet the specified requirements when writing a
prescription.20
Table 2.3 Pharmacy Practice Act & Applicable Statutes and Rules
Subject
APRNs defined as practitioners
Definitions for administer,
Practice Act
§551.003 (34), Texas Occupations
Code (Pharmacy Practice Act)
A Guide for APRN Practice in Texas
TSBP Rule/s
22 TAC §291.31 (34)
22 TAC §291.31 also
contains other important
37
controlled substance, dangerous
drug, designated agent,
medication order, prescription
drug, prescription drug order, and
written protocol
§481.002 (39)(D), Health & Safety
Code (Controlled Substances Act)
§483.001 (12)(D), Texas Health &
Safety Code (Dangerous Drug Act)
§551.003, Occupations Code and
sections of Health & Safety Code
cited above
definitions, including
“advanced practice nurse”
and “carrying out or signing
a prescription drug order”
(see below)
A pharmacist may fill a Rx signed
by an APRN & an APRN may
possess and deliver dangerous
drugs in the course of professional
practice.
Requirements for a Rx form are in
the H&S Code.
TSBP rules specify some
requirements and refer to Dept. of
Public Safety rules (but only to
Schedule II drugs that APRNs may
not prescribe)
§483.042, Texas
Health & Safety Code
(Dangerous Drug Act)
22 TAC §291.31 (34)
§483.001 (13), Texas Health &
Safety Code
22 TAC §291.31 (7)
Generic substitution
Dispensing directive required to
prohibit generic substitution
A pharmacist is required to put
both the names of the APRN who
signed the prescription and the
delegating physician on the
prescription bottle label
A pharmacist may require an
APRN and/or delegating physician
to show evidence of having
practice protocol signed by the
delegating physician
A physician is required to keep a
record of:
designated agents and APRNs to
whom the physician delegates
prescriptive authority; and
where APRNs work.
Be able to supply the pharmacist
the above information on request.
§562.008, Texas Occupations
Code
§552.015, Occupations Code
§483.042 (a)(1) (B) (iv), Texas
Health & Safety Code
(Dangerous Drug Act)
22 TAC Chapter 309
N/A
22 TAC §291.34 (b) (2) (D)
§483.022, Texas Health & Safety
Code (Dangerous Drug Act)
22 TAC §291.34 (b (2) (D)
(ii)
22 TAC §291.34 (b) (3) (B)
22 TAC §291.31 (13)
22 TAC §291.31 (13) (D)
An APRN may be a designated
agent.
§483.001 (4) (C), Texas Health &
Safety Code
A physician may designate a LVN
(or person with equivalent
experience) or RN to call in
prescriptions for an APRN
Pharmacist must determine a true
practitioner -patient relationship
exists
§483.022 (f), Texas Health
& Safety Code
22 TAC §291.34 (b) (6)
22 TAC §309.3 (b)
22 TAC §291.35
37 TAC §§13.71-13.86
(Schedule II drugs)
§562.056, Texas Occupations
Code
A Guide for APRN Practice in Texas
22 TAC §309.3 (c)
22 TAC §309.5(12)
22 TAC, Chapter 200
38
Other Texas Health Care Professions' Practice Acts
If an APRN needs to know if a specific type of health care provider is permitted by law and rule
to accept orders or accept referral from an APRN, the APRN should look in that specific
provider's practice act. Table 2.4 contains some of the most common references used by
APRNs with links to both the practice act and the appropriate rules. However, APRNs should
also note that the health care professional may still refuse a referral/order from non-physician
providers based on the fact that the insurance payer will not reimburse the service unless
ordered by a physician (see Table 2.5).
Table 2.4 Other Practice Acts and Rules
Subject
Practice Act/Statute
Physical Therapists may accept
referrals from APRNs
Occupational Therapists may
accept referrals from APRNs
Orthotists & Prosthetists may not
accept referrals from APRNs
§453.001(9), Texas Occupations
Code (APRNs are not named, the
list is not exclusive, and therefore
includes APRNs.)
§454.213, Texas Occupations
Code
§605.002 (14) & (18), Texas
Occupations Code
Rule/s
22 TAC §322.1 (a) (1)
22 TAC, §372.1 (a)
22 TAC, §821.23 (27) & (33)
Health and Human Services Commission (HHSC)
www.hhsc.state.tx.us
HHSC oversees four Health and Human Services agencies, and administers several health and
human service programs including the Texas Medicaid Program, Children's Health Insurance
Program (CHIP), and Medicaid fraud, and abuse investigations.21
HHSC establishes the program policies and rules for the programs it administers, but HHSC
contracts with another company, the Texas Medicaid Healthcare Partnership (TMHP) to run the
day-to-day operations of those programs. This includes such operations as claim payments and
provider relations. It is through TMHP that APRNs apply to become a provider in Medicaid,
CHIP, Texas Health Steps and several of the programs administered by one of the four HHSC
agencies. TMHP is not a state agency.
Because HHSC establishes rules and rates for the Texas Medicaid Program, there are many
HHSC rules that have a direct impact on APRNs who are Medicaid providers. The rules listed
below are some of the most important. In Table 2.5, the same statute applies to most of these
rules because the Texas Legislature offers relatively little specific guidance on operations of the
Medicaid Program. The section of the Government Code that is repeatedly cited simply grants
HHSC the authority to operate the Texas Medicaid Program. APRNs may visit the U.S.
Department of Health & Human Services website or the Texas Medicaid Healthcare Partnership
for more resources.
Table 2.5 HHSC Statutes and Rules
Subject
Nurse-Midwife Services Benefits
and Limitations Conditions for
Participation Reimbursement
CRNA Services Benefits and
Limitations Conditions for
Participation Reimbursement
Statutes
§531.021, Texas Government
Code (General authority to
administer program & set rates)
§531.021, Texas Government
Code (General authority to
administer program & set rates)
A Guide for APRN Practice in Texas
Rule/s
1 TAC §354.1251
1 TAC §354.1252
1 TAC §355.8161
1 TAC §354.1301
1 TAC §354.1302
1 TAC §355.8221
39
NP and CNS Services Benefits
and Limitations Conditions for
Participation Reimbursement
Permits physicians to bill for
Medicaid services provided by a
CNM, CNS or NP and receive
100%. Per Medicaid Provider
Manual, the physician should
use the modifier “SA”
Rural Health Clinic Conditions for
Participation and Reimbursement
by Medicaid. Includes a
requirement that the physician
establish the plan of care for
patients in long-term care facilities
and being treated through home
health.
Federally Qualified Health Center
Conditions of Participation and
Reimbursement by Medicaid
HHSC requires managed care
companies that contract with
HHSC to provide Medicaid
services to include APRNs as
primary care providers
§531.021, Texas Government
Code (General authority to
administer program & set rates)
§531.021, Texas Government
Code (General authority to
administer program & set rates)
1 TAC §354.1331
1 TAC §354.1332
1 TAC §355.8181
1 TAC §354.1060
1 TAC §354.1062
§531.02192, Texas
Government Code
1 TAC §§354.1201 – 354.1203
1 TAC §355.8101
§531.02192, Texas
Government Code
1 TAC §§354.1321 – 354.1323
1 TAC §355.8261
§533.005 (a)(13), Texas
Government Code (General
authority to administer program
& set rates)
N/A
Home Health Agencies may not
accept a plan of care from an
APRN, e.g. APRNs may not order
initial home health services for
Medicaid clients
§532.021(f), Texas
Government Code (States
physician must certify medical
necessity for nursing services)
1 TAC §354.1037 (a)
Orders/referrals for Medicaid
patients for the following services
must be ordered by a physician:
laboratory and
radiology, physical therapy, and
durable medical equipment
Medicaid Program requirements
for services offered through
Telemedine.
§532.021, Texas Government
Code (General authority to
administer program & set rates)
1 TAC §354.1091
1 TAC §354.1291 (b) (4) & (c)
1 TAC §354.1039 (4) (A) (i)
§531.0216-§531.0275, Texas
Government Code
1 TAC §§354.1430 – 354.1434
Mediciad Program requirements
for disease management services.
§32.057 (c)(2), Texas Human
Resources Code
1 TAC §354.1415 – 354.1417
1 TAC §354.1415 (a) (4)
requires disease management
providers directly involve PCPs
and other APRNs as
appropriate.
Texas Department of State Health Services (DSHS)
www.dshs.state.tx.us
The DSHS is responsible for overseeing the mental and physical health of Texas residents
through regulating and monitoring sanitation, infectious disease and a variety of health related
programs. DSHS is also charged with maintaining records of vital statistics.
A Guide for APRN Practice in Texas
40
DSHS administers a large number of programs targeted at improving the health of specific
populations or enforcing laws concerning specific public health care services. If an APRN works
in one of these programs, such as Primary Health Care, Maternal and Child Health, Kidney
Health Care, or Children with Special Health Care Needs, the APRN must be familiar with the
specific program's rules. One may find the statutes creating those programs by searching the
list of chapters in Subtitle B (Chapters 31 – 171), Health & Safety Code.xliii The rules regulating
those programs are in Title 25, Part 1, Texas Administrative Code.xliv
Mental health and substance abuse programs also fall within the authority of the Texas
Department of Health Services. This includes oversight for services provided by Local Mental
Health Authorities under Chapter 534, Health & Safety Code, and governed by the rules and
regulations in 25 TAC, Chapters 411 - 415.
DSHS is also responsible for regulating most health care facilities, including hospitals,
ambulatory care centers, birthing centers, psychiatric hospitals and crisis stabilization units.
While Rural Health Clinics are surveyed by DSHS, these clinics are regulated by federal rules
(see Table 2.10). The rules regulating these facilities are particularly important because the
rules impact what services certain practitioners may or may not perform in those institutions, as
well as other standards of care. The statutes and rules governing some of these facility licensing
programs are listed in Table 2.6. A full listing can be accessed on DSHS’s Health Facility
Program Rules webpage.22
Table 2.6 DSHS Facility Licensing Statutes and Rules
Subject
Statute
Rule/s
Hospitals
Chapter 241, Texas Health &
Safety Code (H&S Code)
25 TAC Chapter 133
Ambulatory Surgical Centers
Birthing Centers
Abortion Facilities
Special Care Facilities
End Stage Renal Disease
Chapter 243, H&S Code
Chapter 244, H&S Code
Chapter 245, H&S Code
Chapter 248, H&S Code
Chapter 251, H&S Code
25 TAC Chapter 135
25 TAC Chapter 137
25 TAC Chapter 139
25 TAC Chapter 125
25 TAC Chapter 117
Freestanding Emergency
Medical Care Facilities
HB 1357 passed in 2009 added
Chapter 254, H&S Code
Private Psychiatric Hospitals &
Crisis Stabilization Units
Chapter 577, H&S Code
Alcohol and Drug Treatment
Facilities and Programs
Chapter 464, H&S Code
25 TAC Chapter 131 is being
drafted. Adoption likely by May
31, 2010
25 TAC Chapter 134
25 TAC Chapter 411,
Subchapters J, M &N
25 TAC Chapter 448
25 TAC Chapter 229,
Subchapter J
There are certain provisions in the Health & Safety and Human Resources Codes that specify or
permit DSHS to specify what certain health care providers, such as APRNs, must or must not
do. As usual, providers usually look to the rules for the most specific guidance. The following
table lists provisions that may directly affect APRNs.
xliii
xliv
Access Health & Safety Code at http://www.statutes.legis.state.tx.us/.
Access DSHS Rules at http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=25&pt=1.
A Guide for APRN Practice in Texas
41
Table 2.7 Statutes and Rules that Inform APRN Practice
Subject
Statute
Rule/s
Texas Health Steps/EPSDT
APRNs may provide THS services
independently, but must have
delegated prescriptive authority to
obtain free vaccines through the
Vaccines for Children program and to
diagnose and prescribe if the child is
ill. Texas law provides flexibility in the
vaccines available in the Vaccines for
Children Program.
§32.056, Texas Human
Resources Code
§§161.0102 & 161.0103,
Health & Safety Code
25 TAC Chapter 33
APRNs may be providers in the
Children with Special Health Care
Needs Program
Chapter 35, Texas Health &
Safety Code
25 TAC Chapter 38
Rule 38.006
Immunization Requirements &
Limitation on liability for health care
providers
§81.023, Texas Health &
Safety Code (H&S Code)
Chapter 161, H&S Code
25 TAC Chapter 97
Immunization Registry
§161.007-§161.009, H&S
Code
25 TAC Chapter 100
APRNs are required to report if not
being reported by another entity:
Certain communicable diseases
Certain occupational diseases
Elevated blood lead levels
§81.042, H&S Code
§84.003-§84.004, H&S Code
§88.004, H&S Code
25 TAC Chapter 97,
Subchapter A
25 TAC §99.1
Clearinghouse for physicians and
APRNs seeking a collaborative
practice
§105.007, Texas Health &
Safety Code
25 TAC §39.91-§39.94
Anesthesia Services in
Hospital Psychiatric facility
N/A
25 TAC §133.41 (a)
25 TAC §134.41 (a)
CNMs may sign birth certificates
§192.003, H&S Code
25 TAC §181.26
Only physicians sign medical
certifications on death certificates.
CNMs may sign for stillborn deliveries.
§193.005, Texas Health &
Safety Code
N/A
County Indigent Health Care Program
lists APRNs under optional health care
services, but does not require counties
to reimburse APRNs
§61.0285, Texas Health &
Safety Code
25 TAC §14.201
Controlled Substances Act
APRNs are included in the definition of
practitioners
Chapter 481, H&S Code
Note: 37 TAC §13.2 refers to
“practitioner” but the term is
not defined in DPS or DSHS
rules.
Dangerous Drugs Act
Chapter 483, H&S Code
N/A
Mental Health Records –
Confidentiality and other issues
Chapter 611, Texas Health &
Safety Code
25 TAC Chapter 414,
Subchapter A
A Guide for APRN Practice in Texas
42
Only physicians perform a H&P
exam before admission to a
psychiatric facility
§572.0025 (f), Texas Health
& Safety Code
25 TAC §411.461 (2) and (d)
Only physicians order restraints for
behavioral reasons but PMH APRNs
may do the assessment within one
hour of applying a restraint
§576.024, Texas Health &
Safety Code
25 TAC §404.154 (26)
25 TAC §415 Subchapter F
Consent for psychoactive drugs
§576.025, Texas Health &
Safety Code
25 TAC §414.401-.415
Department of Aging and Disability Services (DADS)
www.dads.state.tx.us
DADS is the Texas state agency that regulates and monitors home and community support
programs, assisted and long-term care facilities, and programs for aged, mentally retarded and
disabled individuals. DADS oversees facilities and programs for all ages. The agency operates
programs for medically dependent and other children who need long-term services in their
communities. DADS is also responsible for oversight of all the local authorities that provide
services for the mentally retarded. Those APRNs who see patients in long-term care facilities
and Intermediate Care Facilities for the Mentally Retarded (ICF/MR) should be familiar with
statutes in the Human Services Code and/or Health & Safety Code, as well as the DADS rules
that relate to the standards of care in these facilities and programs. All DADS rules are in 40
TAC, Part 1. An additional resource that can be very helpful in understanding licensing
requirements for various programs and the role APRNs can play in those programs are the
program handbooks DADS writes and updates annually.
Table 2.8 Facility Licinsing Statutes and DADS Rules
Subject
Statute
Rule/s
Hospice Care - A physician must
certify the terminal illness
Chapter 142, Texas Health &
Safety Code does not specify
40 TAC §30.10 (a) (2)
40 TAC §30.14
In ICF/MR facilities, a physician is
required to do a yearly physical
exam. However, this rule is
currently being revised and DADS
issued an interpretation stating that
annual physical exams can be
performed by APRNs.
Chapter 252, Texas Health &
Safety Code
40 TAC §90.42 (e) (11) CNAP
petitioned DADs to amend this
rule to allow APRNs to perform
the yearly physical exam
See DADS memorandum dated
November 13,2008 concerning
interpretation of the rule.
An APRN may order services in
the Primary Home Care Program
(not home health care)
Chapter 35, Texas Human
Resources Code
§32.061 Texas Human
Resources Code
40 TAC §47.47
Certain restraints are prohibited in
all facilities and supervised living
and home care support programs.
Use of chemical restraint is also
limited. Some inappropriate
provisions that specify medications
must be ordered by physicians.
§322.001 & §322.051, Texas
Health & Safety Code
§42.0422, Texas Human
Resources Code
§592.038, Texas Health &
Safety Code
40 TAC §4.109
Nursing Homes & related facilities
Chapter 242, Texas Health &
40 TAC Chapter 19
A Guide for APRN Practice in Texas
43
Safety Code
Assisted Living Facilities
Chapter 247, Texas Health &
Safety Code
40 TAC Chapter 46
Department of Assistive and Rehabilitation Services (DARS)
www.dars.state.tx.us
As the agency name infers, DARS operates rehabilitation and independent living programs
primarily for blind and/or deaf individuals under Titles 4 and 5 of the Human Resources Code.
The Early Childhood Intervention (ECI) program is also operated by DARS. Rules for all DARS
programs are in 40 TAC, Part 2.
Department of Family and Protective Services (DFPS)
www.dfps.state.tx.us
DFPS provides both Child and Adult Protective Services. The agency licenses child care homes
and facilities, as well as maternity facilities and operates family violence prevention programs.
The statutes under which DFPS operates are in Title 2, Subtitles D and E, Human Resources
Code (Chapters 40 – 54). There are also provisions in the Family Code, Subtitle E (Chapters
261-267).
APRNs are one of the professionals required to report suspected abuse or neglect of any
person under §261.101, Family Code. APRNs may be involved in providing health care services
for children or adults that are in the protective services system, and therefore may occasionally
need to refer to Chapter 266, Family Code and DFPS rules in 40 TAC, Part 19.
Department of Pubic Safety (TxDPS)
www.txdps.state.tx.us
The Department of Public Safety administers provisions in the Health & Safety Code (Controlled
Substances Act) and Transportation Code. These provisions impact many APRNs. The rules
established by DPS are located in Title 37, Part 1.
The Department of Public Safety is the agency that registers practitioners who have authority to
prescribe controlled substances under §481.061, Texas Health & Safety Code. DPS also issues
official order forms for Schedule II, Controlled Substances, and enforces most provisions in the
Controlled Substances Act. APRNs who prescribe controlled substances, should be particularly
aware of §§481.071 - 481.074, Texas Health & Safety Code. These sections require
practitioners to have a medical purpose for prescribing or dispensing controlled substances and
specify the conditions under which a pharmacist may fill a prescription for a controlled
substance. The DPS rules on controlled substances are in 37 TAC, Chapter 13. For more
information on receiving a DPS controlled substances license, refer to the DPS Website. The
topic is also discussed in further detail in the prescriptive authority chapter, Section 4.4 of this
manual.
The Transportation Code directs the DPS to implement provisions related to safe operation of
motor vehicles. Subsection 521.022(c), Texas Transportation Code, allows APRNs to perform
annual exams for physical and mental fitness to drive a school bus and to sign the verification
forms. The corresponding DPS rule, 37 TAC §14.12, contains important information for APRNs
performing these exams, referring to federal rules 49 CRF 391.41 and 391.43. Section 391.42
specifies the conditions that disqualify an individual from driving a school bus, and §391.43
gives medical examiners instructions on performing the exam. See Table 2.10 for a link to that
A Guide for APRN Practice in Texas
44
federal rule. Further explanation is also provided in the section on commercial driver physical
exams in the NP & CNS practice section of this manual.
Department of Transportation (TxDOT)
www.txdot.state.tx.us
The Department of Transportation administers the provisions of the Transportation Code
allowing special parking for persons with disabilities. Section 504.201, Texas Transportation
Code, states only physicians and podiatrists may sign verifications for permanent disabled
parking placards or license plates. In 2009, SB 1984 amended §681.003, Transportation Code
related to issuing temporary disabled parking placards. The new language in subsection (c)
permits physicians to delegate authority to sign a medical verification accompanying the first
application for a temporary disabled parking placard to an APRN if the disabled person resides
in a county with a population of 125,000 or less. The corresponding rule is in 43 TAC
§17.24(3)(B)(ii). However, the statute and rule may not be updated until sometime in 2010.
Detailed information about the criteria for mobility impairments that qualify an individual to obtain
a disabled parking placard is on the CNAP website. More information to help patients obtain
disabled permits is available on the TxDOT website.
Texas Education Agency (TEA)
http://www.tea.state.tx.us/
The Texas Education Agency guides and monitors the educational programs for students in
Texas through 12th grade. It also provides resources for those programs. In accordance with
the Texas Education Code, the Commissioner of Education and the 15 elected members of the
State Board of Education (SBOE) oversee TEA and the education system.
Any APRN involved in school health must be very familiar with all the provisions in Chapter 38,
Texas Education Code. This chapter contains all the statutes related to Health & Safety in
schools. TEA Rules are located in Title 19, Part 2 of the Texas Administrative Code. The
Education Code and TEA Rules also contain a few references to sections of the Texas Family
Code and defer to the Department of State Health Services on certain health issues, such as
establishing the immunization schedule for students admitted to schools. The following table
contains a list of statutes and rules that are particularly helpful for APRNs.
Table 2.9 Statutes and Rules
Subject
Immunization exemptions
must be signed by a physician
Reporting Child Abuse/Neglect
An APRN may verify a student
capable of self-administering
asthma or anaphylaxis
medications
An APRN may sign a note
identifying an impairment that
restricts the student from
certain physician education
activities
Special Education
Statute
§38.001 (c) (1) (A), Texas Ed.
Code
§38.004, Texas Ed. Code
§§261.101-261.202, Texas
Family Code
§38.015, Texas Ed. Code
Rule/s
N/A
19 TAC §61.1051
N/A
19 TAC §74.31
§§29.001-29.017, Texas Ed.
A Guide for APRN Practice in Texas
19 TAC §74.28 (Students with
45
Code
Chapter 30, Texas Education
Code
§38.003, Texas Ed. Code
Health Programs and Physical
Education (PE)
A member of the healing arts
may designate
PE restrictions
School-based Clinics
§§38.013-38.014, Texas Ed.
Code
Dyslexia and Reading
Disorders)
19 TAC §89.63 (Special
Education Services)
19 TAC, Division 2
19 TAC §102.1031
19 TAC §74.31
§§38.051-38.064, Ed.Code
N/A
It is important for APRNs to know that individual school districts may adopt policies and
standards that are more restrictive than state standards. Therefore some problems may have to
be addressed with the local school district. The policies of many larger local school districts can
be accessed online through that district's website.
Texas Higher Education Coordinating Board (THECB)
www.thecb.state.tx.us
THECB approves new educational programs and degrees granted by public colleges and
universities in Texas. Therefore, the agency directly impacts many of the nursing education
programs in the state. The agency implements Title 3 of the Education Code and establishes
the rules in 19 TAC, Part 1, under which higher educational institutions operate.
2.11 What APRNs Should Know about Federal Law
If there is any conflict in state and federal law, federal law always supersedes. Therefore, on
those issues over which the federal government has authority, state laws are consistent with the
corresponding federal law. It is beyond the scope of this manual to go into great detail on
federal law. However, every APRN must be familiar with some basic information and
understand how to access laws and rules on federal government websites.
Federal Statutes
The organization of federal statutes and rules is similar to Texas in that the law is organized into
codes. The United States Code (USC) is divided into 50 Titles that group statutes on specified
subjects. The title pertaining to public health and welfare is Title 42.
Federal statute titles are further divided into chapters, subchapters and parts. References are
cited by the title number, followed by "U.S.C.", followed by the specific chapter and section
numbers. For instance, the provision on grants for APRNs is located in Title 42, Chapter 6APublic Health Service, Subchapter XI-Nursing Workforce Development, Part B-Nurse
Practitioners, Nurse Midwives, Nurse Anesthetists and Other Advanced Education Nurses,
Section 296j. The citation is written, 42 U.S.C. §296j. With that citation, one can access the text
by entering the citation in the search feature of the U.S. Code Main Page on the Government
Printing Office's website, www.gpoaccess.gov/uscode/index.html. Access the list of titles and
browse all federal statutes through http://www.gpoaccess.gov/uscode/browse.html.
Federal Rules & Regulations
The Code of Federal Regulations (CFR) contains all the rules promulgated by federal agencies.
The title number in the CFR often corresponds to the USC title and is named for the issuing
office, agency or generally describes the group of agencies that issues the rules in that title. For
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instance, the federal laws on public health and welfare are located in 42 USC and the
corresponding rules on public health are located in 42 CFR.
For more information on the CFR see http://www.gpoaccess.gov/cfr/about.html. If one has the
exact citation for the rule, including the title, part and section numbers, the text can be accessed
through http://www.gpoaccess.gov/cfr/retrieve.html. To find the current and past versions of all
federal rules, listed by titles, see http://www.access.gpo.gov/nara/cfr/cfr-table-search.html. The
rules are updated annually. Rules in 42 CFR are updated on October 1st each year to include
amendments made during the previous year. Therefore, to find the most recent version, after
October 1, 2009, search the titles rather than using links established in Table 2.10. This table
cites a few federal rules that APRNs most frequently need to locate.
Table 2.10 Federal Agencies and CFR Citations
Agency
CFR Citation
Centers for Medicare and Medicaid Services
(CMS)
NPs, CNSs & CNMs may order diagnostic
tests
Payment for Medicare Part B for physicians
and other health care providers CNMs are
paid at 65% NPs and CNSs are paid at 85%.
Assistant at surgery 75% CRNAs are paid at
100% Medically directed CRNAs at 50%
Hospice Care Physician must certify terminal
illness NP may act as attending physician
42 CFR 400-429
NPs & CNSs may certify need for physical
&speech therapy
42 CFR 424.24 (a) (3)
Hospital Conditions of Participation in
Medicare
CNMs may admit patients without medical
supervision
Physician or LIP must order restraints
Orders for drugs, biological and medical
devices may be signed by Practitioners
Anesthesia Services
Only physicians may order home health
services
Rural Health Clinics
Federally Qualified Health Center Rules
42 CFR 482.1-482.66
42 CFR 482.1 (a) (5)
42 CFR 482.18 (e)
42 CFR 482.23 (c)
42 CFR 482.52
Physical qualifications for school bus drivers
and other commercial drivers
49 CFR 391.41
49 CFR 391.43
42 CFR 410.32 (a) (3)
42 CFR 414.1-414.1001
42 CFR 414.54
42 CFR 414.56
42 CFR 414.60
42 CFR 414.46 (d) (3)
42 CFR 418.1-418.405
42 CFR 418.22 (b)
42 CFR 418.3 (1) (ii)
42 CFR 484.18
42 CFR 491
Also see Medicare/Medicaid State
Operations Manual, Publication 100-07,
Chapter 2, 2240 - 2262
The Federal Register
The Federal Register is published each business day and is generally divided into three large
sections consisting of "Rules and Regulations", "Proposed Rules", and "Notices". The purpose
of the Federal Register is similar to that of the Texas Register. However, proposed rules are
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generally open for a 60 day comment period instead of 30 days. Also, there may be up to five
years between proposal of rule changes in the Federal Register and final adoption.
One may access issues of the Federal Register at http://www.gpoaccess.gov/fr/index.html. The
Regulations.gov website allows the public to search for rules that are open for comment and to
submit comments online.
The Importance of Definitions
A chapter on laws and regulations would not be complete without discussing the vital
importance of definitions. Many statutes and rules have a section devoted to defining terms
used in the chapter or title. The definition of "practitioner" in one law might exclude APRNs,
while the definition of "physician" in another law might include APRNs. Federal law frequently
uses the term "physician" but the term may include a variety of providers, depending upon the
definition that pertains to that section. A perfect example is the definition of "attending physician"
in the CMS rules on hospice care. In 2005, the definition was changed to include nurse
practitioners.
Other Important Updates and Information on Medicare and Federal Programs
Since there is such a long lag time between the proposal of rules in the Federal Register,
adoption, and revision in the Code of Federal Regulations, the APRN must access other
sources to stay current about these changes. The CMS regularly informs and updates Medicare
providers through several publications.
The CMS website is the best place to learn about any aspects of Medicare and related federal
health programs. On that website, the APRN can access the program manuals, and many other
sources of information. One of the best resources is the Medicare Learning Network (MLN).
The MLN publications, formerly known as Medlearn Matters, and now MLN Matters, is designed
to notify Medicare fee-for-service providers of all the latest changes in rules, policies and
interpretations. For instance, two years before the CMS changed the rule defining attending
physicians in hospice to include NPs, a Medlearn Matters article, MM3226 issued on September
24, 2004, announced that NPs can act as attending physicians under the hospice benefit.
Staying up to date is very important for an APRN's practice and the bottom line.
Another source of information is CMS Quarterly Provider Updates. While MLN articles provide
information on single topics, the quarterly updates inform the public on all the regulation, policy
and manual changes in the previous three months.
National APRN professional organizations also monitor changes in federal laws and rules.
Membership in your state and national professional organizations is one of the easiest ways to
stay up to date.
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Chapter 3
The Foundations of Practice
APRN Professional Organizations and Other Sources of
Professional Support
Key Points
 Professional, credentialing and accrediting organizations have different purposes and play
distinct roles to maintain and improve a profession.
 Professional organizations exist primarily to further the profession it represents but often also
work to achieve some societal goals.
 APRN professional organizations often set standards and scope for the profession.
 For tax purposes, professional organizations are usually formed as 501(c)(6) tax exempt
corporations.
 Credentialing organizations validate the skills, knowledge and abilities of individuals who
meet specific educational and training/work requirements.
 Accreditation is a voluntary process, usually for institutions or organizations that agree to
abide by a set of standards.
 Accreditation Organizations provide organizations and institutions with a process to
demonstrate they meet the standards set forth and have take responsibility to improve.
 Political Action Committees (PACs) are the only legal way for professionals to band together
to contribute to political campaigns.
Introduction
The advanced practice that you enjoy today was accomplished by the hard work, dedication,
persistence and resolve of APRNs who have gone before you. They could not have done it
alone, or in isolation. They formed organizations, developed agendas and fought very hard to
be able to practice the way we can today. Therefore, the authors view professional
organizations as the second arm of the foundations of APRN practice.
This chapter is intended to provide information related to advanced practice nursing
professional organizations. It distinguishes those organizations from other types, and also offers
other sources of professional support for APRNs.
Please understand that organizations are dynamic, living entities. The structure changes, the
people involved change, even the address and contact information change from time to time.
The information provided in this Chapter comes from each organization’s website.
3.1 Professional, Credentialing and Accrediting Organizations
APRNs need to understand the difference between three types of organizations: a professional
organization, a credentialing organization, and an accrediting organization. Each has a distinct
purpose and plays a distinct role in an APRN’s professional life. It is this network of
organizations, if functioning effectively, that constantly improves a profession and acts as
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checks and balances to ensure quality in each step in the process of becoming a member of a
profession. Of course, the ultimate check and balance is the governmental regulatory agency,
such as the BON discussed in Chapter 2.
Professional Organizations
Professional organizations exist to further the profession they represent. Broadly, they have two
objectives. Professional organizations improve the:
1. economic status and working conditions of the members; and
2. service the profession performs for society.
This is, at best, a very broad definition, however APRN professional organizations certainly
have an advocacy role for both its members and society at large.23
The primary advocacy role that a professional organization plays is for its members. The
organization works for its membership and advances the profession by providing one voice to
represent the group. The more members an organization has, the stronger its voice.
Professional organizations function to assist policy makers with difficult decisions and these
organizations become stakeholders with regular input into the legislative and regulatory
processes. Regulatory agencies, such as the Board of Nursing (BON), point to national
professional organizations as the experts on certain issues and specify certain professional
organizations as those that set the standards and scopes of practice for their profession. The
designated organizations are delineated in Table 1.5.
Professional organizations are usually organized under the U.S. Internal Revenue Code as
501(c)(6) organizations. This includes all types of business leagues that are not organized for
profit and no part of the net earnings benefits a private individual. xlv The organization has bylaws
that dictate its purpose, structure, membership and governance that includes a board elected or
appointed by its members. The board may, in turn, hire staff to conduct the day-to-day
operations of the organization.
The membership of a professional organization may be composed of individuals, other
organizations, or both. An example of an organization that accepts both is the American
Academy of Nurse Practitioners. The group member could be the entire state organization, a
regional or local organization, or other special interest groups that choose to join. To find the
types of member each organization accepts, refer to the organization’s website or contact the
organization.
Any APRN interested in forming a local professional organization can receive guidance from
their national and state professional organizations. See the list of organizations in Sections 3.2
and 3.3 of this chapter for an appropriate organization that might offer information to members
interested in forming local affiliates.
As APRNs look toward the future, we must take up the fight and do everything we can to
perpetuate the cause of integrating APRNs into the mainstream of the United States health care
system. It takes everyone doing their part to make this happen. Every APRN is encouraged to
be active in their local, state and national organizations. This is your profession. Protect it.
xlv
Internal Revenue Service. Business Leagues. Accessed:
http://www.irs.gov/charities/nonprofits/article/0,,id=96107,00.html.
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Credentialing Organizations
Credentialing organizations are charged with the responsibility of validating skills, knowledge
and abilities of the persons they credential. They accomplish this through developing and
administering exams. The organization sets the minimum eligibility requirements for individuals
admitted to take the exam. Then the organizations confer a specific credential on the person
who passes the exam and the person may use that credential when signing the person’s name.
A credential is an attestation of qualification, competence, or authority issued to an individual by
a third party with a relevant de jure or de facto authority or assumed competence to do so.24 To
maintain the ability to continue using the credential, most credentialing organizations set
requirements that must be met on a regular basis, usually annually.
These organizations educate the public, and collaborate with organizations to advance the
understanding of the credentialing services, as well as support credentialing through research,
education and consultative services.
In the case of APRN credentialing organizations, they perform a task/job analysis of the
practicing APRNs credentialed by the organization and use that task analysis to determine the
outline for the exam. The exam is designed to test entry-level knowledge and competencies.
The exam items are usually written by practicing APRNs and then tested and refined for validity
and reliability.xlvi Please see Chapter 1 for an in-depth discussion and Table 1.3 for a list of
credentialing organizations for APRNs.
Accrediting Organizations/Agencies
Accrediting organizations are usually referred to as accrediting agencies. They provide the
public with the assurance that a particular entity meets certain standards. Examples of the
entities that might be accredited include universities, schools of nursing, credentialing
organizations, and hospitals or other health care facilities. The most prominent example of an
accrediting agency is The Joint Commission (formerly JCAHO) that accredits hospitals and
other health care facilities.
The NPA requires the BON to select one or more nursing accrediting agencies that are
recognized by the United States Department of Education to accredit schools of nursing and
nursing educational programs.xlvii Any school of nursing or APRN program accredited by these
agencies will automatically qualify individuals that graduate from these educational programs to
become licensed by the BON if the individual meets all other requirements. There are two
accredting agencies for professional nursing schools: National League for Nursing Accrediting
Commission (NLNAC) and Commission on Collegiate Nursing Education (CCNE). Both
accredting agencies are recognized by the BON.25 For more information on accreditation, see
the U.S. Department of Education’s Overview of Accreditation.26
3.2 National APRN Organizations
This section contains a listing and brief summary of each national organization representing an
APRN role or a particular population-focus area in which APRNs practice. In a few cases these
xlvi
National Council of State Boards of Nursing. (January 2002). Requirments for Accrediting Agencies and Criteria
for APRN Certification Programs. Accessed:
https://www.ncsbn.org/Requirements_for_Accrediting_Agencies_and_the_Criteria_for_Certification_Programs.pdf.
xlvii
§301.157(b)(5), Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.157.
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are national nursing organizations that also include advanced practice. Information for each
organization comes directly from the organization’s website.
American Academy of Nurse Practitioners (AANP)
http://www.aanp.org/AANPCMS2
“AANP formed in 1985 to provide NPs with a unified way to network and advocate for NP issues
and was the first national organization created for nurse practitioners of all specialties. As the
largest and only full-service national professional membership organization for NPs of all
specialties, AANP represents the interests of the more than 125,000 NPs currently practicing in
the U. S. and continually advocates at local, state, and federal levels for the recognition of NPs
as providers of high-quality, cost-effective, and personalized healthcare.” AANP’s national
office is in Austin, Texas, but the organization also maintains a office to address national health
and NP policy issues in Washington, D.C.
American Association of Critical-Care Nurses (AACN)
www.aacn.org
Formed in 1969, AACN has grown to be the largest specialty nursing organization in the world,
representing the interest of more than 500,000 nurses. AACN is dedicated to creating a
healthcare system driven by the needs of patients and families where acute and critical care
nurses make their optimal contribution. Members may contact chapters through the AACN
Chapters page.
American Association of Heart Failure Nurses (AAHFN)
http://aahfn.org
The AAHFN is a specialty organization dedicated to advancing nursing education, clinical
practice and research to improve heart failure patient outcomes. Heart failure is our exclusive
interest and passion. Our goal is to set the standards for heart failure nursing care.
AAHFN unites the full spectrum of nurses and other health professionals interested in heart
failure. Serves as the interface for sharing ideas, translating research findings into practice and
setting priorities for the future. AAHFN welcomes and values all professionals involved in heart
failure care. Focusing on patients across all environments of care from the hospital, to the clinic,
to home.
American Association of Nurse Anesthetists (AANA)
http://www.aana.com/
Founded in 1931 and located in Park Ridge, Ill., the AANA is the professional organization for
37,000 CRNAs, more than 90 percent of the nation’s nurse anesthetists. Members of AANA are
automatically members of the state nurse anesthetist association. The state associations are
divided into regions and a director for each region is on the AANA Board of Directors. James
Walker, CRNA, is the current president-elect of AANA and is slated to become president for
AANA’s 2010 fiscal year.
American College of Nurse-Midwives (ACNM)
http://www.acnm.org/ and http://www.midwife.org/
With roots dating to 1929, the American College of Nurse-Midwives (ACNM) is the oldest
women's health care organization in the U.S. ACNM provides research, administers and
promotes continuing education programs, establishes clinical practice standards, creates
liaisons with state and federal agencies and members of Congress.
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The mission of ACNM is to promote the health and well-being of women and infants within their
families and communities through the development and support of the profession of midwifery
as practiced by certified nurse-midwives, and certified midwives. The philosophy inherent in the
profession states that nurse-midwives believe every individual has the right to safe, satisfying
health care with respect for human dignity and cultural variations.
American College of Nurse Practitioners (ACNP)
http://www.acnpweb.org/
The American College of Nurse Practitioners (ACNP) is located in Washington, DC. Its mission
is to ensure a solid policy and regulatory foundation that enables Nurse Practitioners to continue
providing accessible, high quality healthcare to the nation. ACNP’s membership structure
includes both individual nurse practitioners as well as national and state NP organizations with
the purpose of uniting the diverse practice specialties of NPs.
ACNP’s Core Values
» Nurse practitioners have the ability and responsibility to positively influence health policy.
» The care of individuals, families, and communities is the foundation of our nursing profession.
» Nurse practitioners provide high quality, cost-effective care.
» Interdisciplinary non-hierarchical team care is the highest quality of care.
» Organizational collaboration and inclusiveness is essential.
American Nurses Association (ANA)
http://www.nursingworld.org/
The American Nurses Association (ANA) is the only full-service professional organization
representing the nation's 2.9 million registered nurses (RNs) through its 54 constituent member
associations. The ANA advances the nursing profession by fostering high standards of nursing
practice, promoting the rights of nurses in the workplace, projecting a positive and realistic view
of nursing, and by lobbying the Congress and regulatory agencies on health care issues
affecting nurses and the public.
American Psychiatric Nurse Association (APRNA)
http://www.APRNa.org/
The American Psychiatric Nurses Association (APRNA) is the voice of psychiatric nursing. A
professional organization of over 5,000 members, we are committed to the specialty practice of
psychiatric-mental health nursing, health and wellness promotion through identification of
mental health issues, prevention of mental health problems and the care and treatment of
persons with psychiatric disorders.
Association of Faculties of Pediatric Nurse Practitioners (AFPNP)
http://www.afpnp.org/
The Association of Faculties of Pediatric Nurse Practitioners began in 1972, when PNP faculty
from across the nation gathered to establish curriculum guidelines. It is a national organization
of nursing educators who teach in pediatric, family and school nurse practitioner programs. The
organization goals include promoting quality PNP education, promoting faculty development,
advocating for quality child health care, and working together on relevant practice and
educational issues.
Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN)
http://www.awhonn.org/awhonn/
The Association of Women's Health, Obstetric and Neonatal Nurses (AWHONN) promotes the
health of women and newborns. Its membership includes all nurses who care for women and
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neonates. Its mission is to improve and promote the health of women and newborns and to
strengthen the nursing profession through the delivery of superior advocacy, research,
education and other professional and clinical resources to nurses and other health care
professional.
Gerontological Advanced Practice Nurses Association (GAPNA) – formerly the
National Conference of gerontological Nurse Practitioners (NCGNP)
http://www.gapna.org
The Geronotological Advanced Practice Nurses Association was founded in 1981, by a small
group of GNPs with the intention of offering the first continuing education conferences designed
specifically to meet the needs of GNPs. Currently, GAPNA represents nearly 10,000 APRNs
whose practice focuses on the care of older adults. GAPNA is an excellent organization for NPs
and CNSs who need continuing education in gerontological care and peer support from
experienced clinicians.
National Association of Clinical Nurse Specialists (NACNS)
http://www.nacns.org/
NACNs was founded in 1995. Its mission is to enhance and promote the unique, high value
contribution of the clinical nurse specialist to the health and well-being of individuals, families,
groups and communities, and to promote and advance the practice of nursing. Formation of
NACNS was a milestone in development of the CNS profession. For the first time, CNSs could
speak with a unified voice. Since the development of the profession in the 1950’s, CNSs tend to
participate in professional organizations devoted to the CNS’s specialty, but this left a void in
developing consistent standards, certification and advocacy for the profession
National Association of Neonatal Nurse Practitioners (NANNP)
http://www.nann.org/nannp/index.html
The National Association of Neonatal Nurse Practitioners (NANNP) was founded as a division of
the National Association of Neonatal Nurses (NANN) to improve the care to neonates, infants,
and their families by establishing a forum for communication among neonatal nurse practitioners
(NNP). NANNP provides a voice for communication jointly with the Perinatal Section of the
American Academy of Pediatrics (AAP) about neonatal issues in order to improve upon the
already strong collaboration between neonatologists and NNPs.
National Association of Nurse Practitioners in Women’s Health (NPWH)
http://www.npwh.org/
The National Association of Nurse Practitioners in Women's Health was founded in 1980.
NPWH's mission is to assure the provision of quality health care to women of all ages by nurse
practitioners. NPWH defines quality health care to be inclusive of an individual's physical,
emotional, and spiritual needs.
NPWH recognizes and respects women as decision-makers for their health care. NPWH's
mission includes protecting and promoting a woman's right to make her own choices regarding
her health within the context of her personal, religious, cultural, and family beliefs.
NPWH represents nurse practitioners that provide care to women in the primary care setting as
well as in women's health specialty practices.
NPWH is a trusted source of information on nurse practitioner education, practice, and women's
health issues. NPWH works with a wide range of individuals and groups within nursing,
medicine, the health care industry, and the women's health community.
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National Association of Pediatric Nurse Practitioners (NAPRNAP)
http://www.napnap.org/index.aspx
NAPRNAP was formed in 1973 as the National Association of Pediatric Nurse Associates and
Practitioners, and was the first national NP organization. Since the term “Pediatric Nurse
Associate” was totally replace by “Pediatric Nurse Practitioner,” the organization changed its
name but retained its well-recognized brand name, “NAPNAP.”
NAPANP’s mission is to promote optimal health for children through leadership, practice,
advocacy, education and research. NAPRNAP has over 7,000 members and many chapters
across the United States. To see the chapters in Texas, see Section 3.3 below or NAPNAP’s
website. NAPNAP is in the process of changing its membership structure so that national
members will also automatically be members of a local chapter.
National Organization of Nurse Practitioner Faculties (NONPF)
http://www.nonpf.com/
The National Organization of Nurse Practitioner Faculties (NONPF) is the only organization
specifically devoted to promoting quality nurse practitioner (NP) education at the national and
international levels. NONPF provides valuable resources and enhances the promotion and
tenure of NP faculty. Starting in 1974 as a small group of educators meeting to develop the first
NP curriculum guidelines, NONPF has evolved into the leading organization for NP faculty
sharing the commitment of excellence in NP educations. Today, the organization represents a
global network of over 1200 educators.
NONPF provides leadership in promoting quality nurse practitioner education at the national and
international levels. NONPF is broadly recognized for its leadership role in developing and
maintaining NP educational resources. First released in 1990 and subsequently updated in
1995, 2000, 2002, and 2006, the NONPF domains and core competencies for NP practice have
provided guidance to curriculum development across NP programs. NONPF has also led the
development of entry-level competencies for NP specialty practice and of national guidelines for
NP educational programs. These seminal documents support the preparation of highly qualified
health professionals.
3.3 Texas State & Regional APRN Professional Organizations
Texas has a very active network of statewide APRN organizations. In addition, there are five
chapters of national organizations that draw members from various regions of Texas. It is
through membership in many of these organizations that almost 5,000 Texas APRNs stay
informed and advocate for APRNs and their advanced practice nursing professions. However,
this number represents less than half of the APRNs that reside in Texas. Advanced practice
nursing needs all APRNs to join at least one of the professional organizations that is a member
of CNAP (see below).
Coalition for Nurses in Advanced Practice (CNAP)
http://www.cnaptexas.org/
CNAP was formed in 1991 as a coalition of statewide and regional Texas advanced practice
nursing organizations. CNAP hires lobbyists to represent APRNs’ interests at the Texas Capitol
and before state agencies. This is the APRN organization that focuses and coordinates the
state legislative and regulatory efforts for all APRNs in Texas.
Each of CNAP’s member organizations sends one or more representatives to CNAP meetings
that are held in Austin about 10 times a year. Individual APRNs are also welcome to attend
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meetings on a one time or regular basis. CNAP sponsors an annual APRN Legislative Day in
Austin, as well as three APRN Days at the Capitol during Legislative Sessions.
CNAP’s mission is to:
1. Create a legal and regulatory climate in which Advanced practice registered nurses can use
their full potential to improve the health and well-being of all Texans; and
2. Educate Advanced practice registered nurses and stakeholders about the legal boundaries
of APRN practice.
CNAP focuses on:
 Expanding prescriptive authority;
 Ensuring clinical privileging;
 Increasing third party reimbursement;
 Improving recognition of APRNs;
 Protecting APRNs’ interests; and
 Informing APRNs on laws and regulations.
CNAP member organizations include:
 Consortium of Texas Certified Nurse Midwives
 Gulf Coast Gerontological Nurse Practitioners
 Greater Texas Chapter of National Association of Pediatric Nurse Practitioners
 Houston Area Chapter of NAPNAP
 Psychiatric Advanced Practice Nurses of Austin
 Texas Association of Nurse Anesthetists
 Texas Association of Neonatal Nurse Practitioners
 Texas Clinical Nurse Specialists
 Texas Nurse Practitioners
CNAP answers questions for individual APRNs and others who need to understand the law and
rules that govern APRN practices in Texas. For an hourly fee, CNAP also provides some
consulting services for practices and health care facilities where APRNs practice.
Chapters of the National Association of Pediatric Nurse Practitioners (NAPNAP)
The Greater Texas Chapter NAPRNAP (GTx-NAPNAP)
http://www.texasnapnap.com/
The Greater Texas Chapter NAPNAP (GTx-NAPRNAP) is a professional organization of
Pediatric Nurse Practitioners (PNPs) who work throughout Texas in a myriad of settings.
The Purpose of the Greater Texas Chapter of NAPRNAP is to:
o Promote and foster national NAPRNAP issues in the greater Texas area ;
o Develop and sponsor continuing education for healthcare providers in a
pediatric population; and
o Support and facilitate state and local programs to improve quality of
healthcare in pediatrics.
GTx-NAPNAP is a member of the Coalition for Nurses in Advanced Practice.
Houston Area Chapter of NAPRNAP (HAC-NAPNAP)
http://www.houstonnapnap.org/
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HAC-NAPRNAP formed in 1985 with 10 members and now has about 75 members. This
is an active group that meets at various locations in Houston every other month. HACNAPNAP is a member of the Coalition for Nurses in Advanced Practice.
South Texas Alamo Chapter of NAPRNAP – San Antonio
Chapters of the Gerontological Advanced Practice Nurses Association (GAPNA)
Gulf Coast Chapter (Houston - Galveston area)
https://www.gapna.org/chapter-pages/texas-houston-gulf-coast.html
For information about GCGNP, contact Elizabeth Godlove at [email protected].
GCGNP is a member of the Coalition for Nurses in Advanced Practice.
Dallas Lone Star Chapter
https://www.gapna.org/chapter-pages/texas-dallas-lone-star-chapter.html
For information about the Dallas Chapter, contact Natalie Garry at [email protected].
Consortium of Texas Certified Nurse-Midwives (CTCNM)
http://www.midwivesoftexas.org/
CTCNM‘s primary purpose is to promote and improve healthcare outcomes for the women and
children of Texas. CTCNM advocates for the independent and full scope practice of Texas
nurse-midwives in the health care system as an ideal way of, achieving safe, high quality, cost
effective, and satisfying care for women and children. CTCNM also supports women and
families’ freedom to chose with whom and where to have their baby within the safety bounds of
evidenced based care. CTCNM is one of the founding members of the Coalition for Nurses in
Advanced Practice.
Psychiatric Advanced Practice Nurses of Austin
http://psychnp.org/
PAPNA is dedicated to serving psychiatric nurse practitioners and clinical nurse specialists in
Austin and the surrounding area. PAPNA meets monthly with meeting dates and locations
posted on the website. PAPNA joined the Coalition for Nurses in Advanced Practice in July
2009.
Texas Association of Nurse Anesthetists (TANA)
http://www.txana.org/
The mission of the Texas Association of Nurse Anesthetists is to advance the profession of
nurse anesthesia, enhance the art and science of anesthesiology, and facilitate the provision of
accessible, affordable, high quality health care. TANA is one of the founding members of the
Coalition for Nurses in Advanced Practice.
Texas Association of Neonatal Nurse Practitioners (TxANNP)
http://www.txannp.org/
TxANNP was formed in 2006 to focus on the needs of neonatal advanced practice registered
nurses. The organization provides educational and collaborative research opportunities for
NNPs. TxANNP became a member of CNAP in 2008.
Texas Clinical Nurse Specialists (TxCNSs)
http://www.txcns.org/
The Texas Clinical Nurse Specialist Organization exists to provide a voice for clinical nurse
specialists in Texas and to promote the unique contributions of CNS practice to the health of
A Guide for APRN Practice in Texas
57
individuals, families, and communities, and to the performance of healthcare organizations.
TxCNS is a member of the Coalition for Nurses in Advanced Practice.
Texas Nurses Association (TNA)
http://www.texasnurses.org/
This is the organization in Texas that represents all professional nurses. TNA works closely with
CNAP in setting the agenda for advanced practice nursing in Texas.
Texas Nurse Practitioners (TNP)
http://www.texasnp.org
TNP’s mission is to promote the professional excellence of nurse practitioners, and to support
quality healthcare through leadership, education and advocacy. TNP is the only organization in
Texas for all nurse practitioners. It currently has about 1500 members, about one-fifth of the
NPs living in Texas. TNP is a founding organization of the Coalition for Nurses in Advanced
Practice.
3.4 Local & Area APRN Professional Organizations
Local organizations of APRNs are the backbone of the profession. Active local organizations
provide networking and the day-to-day support that can help an APRN be successful in their
profession. Any APRN that is not a member of a local organization of APRNs should join one.
Local Organizations Affiliated with the Consortium of Certified Nurse-Midwives
North Texas (mostly active in Dallas/Ft. Worth area and east to Tyler)
South-east Texas (Houston, Galveston, Port Arthur and north to Nachogdoches)
South Texas (primarily the Valley/Corpus Christi)
Central Texas (encompasses Austin, Ft. Hood, San Antonio and College Station)
West Texas (Midland-Odessa, Amarillo, and El Paso)
Local Organizations Affiliated with Texas Clinical Nurse Specialists
Local Organizations Affiliated with Texas Nurse Practitioners
For more information on these organizations, go to TNP’s Affiliate webpage.
Austin Advanced Practice Nurses
http://austinAPNs.org/
Advanced PracticeNnurses of the Permian Basin
http://www.apnpb.org
Big Country Nurse Practitioners Association
Brazos Valley Nurse Practitioners Association
www.bvnpa.org
Central Texas Nurse Practitioner Association
Denton Area Nurse Practitioners
East Texas Nurse Practitioner Association
A Guide for APRN Practice in Texas
58
http://www.etnpa.org
El Paso Area Advanced practice registered nurses
Galveston Coalition of Advanced practice registered nurses
http://www.gcapn.org
Heart of Texas Nurse Practitioners
Houston Area Nurse Practitioners
http://www.hanp.org
Laredo Nurse Practitioners
North Texas Metroplex West
http://www.ntnp-mw.org
North Texas Nurse Practitioners
http://www.ntnp.org
Panhandle Nurse Practitioner’s Association
http://www.txpnpa.com
San Angelo Coalition of Nurses in Advance Practice
http://sacnap.org
San Antonio Nurses in Advanced Practice
http://www.sanap.org
Southeast Texas Nurse Practitioners
http://www.setxnp.org
South Plains Nurse Practitioners
http://www.spnursepractitioners.com
Texhoma Nurse Practitioners
Valley Advanced practice registered nurses Association, Inc. (VAPRNA)
http://www.vAPRNa.org
Victoria Area Nurse Practitioners (VANP)
3.5 National Council of State Boards of Nursing (NCSBN)
NCSBN is an unusual organization in that it is an organization of state boards of nursing (the
regulatory agencies in each state or territory). The “purpose of NCSBN is to provide an
organization through which boards of nursing act and counsel together on matters of common
interest and concern affecting the public health, safety and welfare, including the development
of licensing examinations in nursing.”xlviii
xlviii
National Council of State Boards of Nursing. About NCSBN. Accessed: https://www.ncsbn.org/about.htm.
A Guide for APRN Practice in Texas
59
NCSBN is not a professional organization in that it does not promote the profession, but it is an
organization that has a huge influence on all nurses by promoting consistency and excellence in
regulating the practice of nursing. This is the organization that develops the NCLEX-RN and
NCLEX-PN. It is also having an increasing affect on APRNs.
In addition to developing the Nurse Licensure Compact, it also developed the APRN Compact.
In September 2008, the NCSBN posted the Consensus Model for APRN Regulation: Licensure,
Accreditation, Certifiaction & Education. Accompanying the consensus model paper is the
APRN legislative language.27 In the future, this language will serve as the basis for the statutory
language regulating APRNs in each state.
3.6 Texas RN/APRN PAC
The Texas RN/APRN PAC is a Political Action Committee. This is not a professional
organization. To the contrary, incorporated professional organizations or any other incorporated
entity may not contribute to a candidate’s political campaign. A Political Action Committee, such
as the Texas RN/APRN PAC, is created to contribute to political candidates and office holders.
The official sponsoring organizations for the Texas RN/APRN PAC are the Texas Nurses
Association, the Texas Association of Nurse Anesthetists and the Coalition for Nurses in
Advanced Practice. These organizations pay the costs connected with administering the PAC
and all the money contributed to the PAC by RNs and APRNs are distributed directly in the form
of contributions to Texas candidates and office holders. Acting in concert, representatives of the
sponsoring organizations determine which candidates the RN/APRN PAC should endorse and
support with a contribution to the candidate’s campaign. The PAC also organizes nurses in
legislative districts to interview candidates and to volunteer in candidates’ campaigns.
The PAC supported by the Texas Medical Association has one of the most well funded PAC in
Texas with almost $1,000,000 contributed each year. RNs and APRNs do not have to have that
large a PAC to be effective, but it is important for APRNs to shoulder their fair share in making
sure that RNs and APRNs make their presence known in the political process.
For more information or to contribute to the Texas RN/APRN PAC, go to TNA’s advocacy
website section and click on RN/APRN PAC.
3.7 Free APRN Publications & Other Resources
While every APRN must spend money every year for memberships in professional
organizations, licensing fees, continuing education, references and equipment, there are some
excellent resources for APRNs that are free. This section will help APRNs take advantage of
those resources,
Free Publications
Advance for Nurse Practitioners
www.advanceweb.com
1-800-355-1088
Clinical Advisor
www.clinicaladvisor.com
1-800-430-5450
A Guide for APRN Practice in Texas
60
Clinician Reviews
[email protected]
1-800-480-4851
Consultant
www.ConsultantLive.com
Nurse Practitioner Prescribing Reference (NPPR)
One year subscription (4 issues)
1-800-436-9269
Promo code H899AD
The Female Patient
www.femalepatient.com
1-800-480-4851
Women’s Health Care
http://www.npwh.org/
1-202-543-9693
Other Resources
Nurse Practitioner Associates for Continuing Education
http://www.npace.org/
NPACE's mission is to provide high quality, innovative educational programs to Nurse
Practitioners, Advanced Practice Registered Nurses, and students and to enhance the
profession. NPACE is a non-profit organization but it is not a professional organization. It’s sole
purpose is providing national and regional primary care and specialty conferences for APRNs.
NP Central
http://www.npcentral.net/
NP Central is a non-profit organization dedicated to the practice development, advancement
and educational support of Nurse Practitioners and to promotion of accessible, quality, health
care to the consumer.
Texas Medical Liability Trust (TMLT)
www.tmlt.org
TMLT is certainly not an organization for APRNs but it is the major malpractice liability insurer
for physicians in Texas. While wholly owned by Texas physicians, TMLT would not exist
without the statutory provisions in Texas law that makes its existence possible. In this sense, it
has some obligations to the public.
TMLT produces excellent risk management publications. Most of the resources they produce,
such as “The Reporter,” published six times a year, are free on the Internet. While TMLT
publications are created primarily for physicians and persons who work for physicians, these
publications are equally beneficial for APRNs. To access “The Reporter” and other publications,
go to http://www.tmlt.org/publications/resources/.
A Guide for APRN Practice in Texas
61
Chapter 4
Prescriptive Authority
Key Points
 Knowing the history of prescriptive authority in Texas helps one understand the complex
system of delegated, site-based prescriptive authority for APRNs in Texas, as well as the
unusual terminology in the statutes and rules.
 Certain terms are legally defined in state statutes and rules. APRNs must understand the
legal definitions.
 Small words, such as "or," "and," "shall," "will," "must" and "may," significantly alter the
meaning in a definition or provision in a statute or rule.
 Prescribing refers to writing a prescription that will be filled at an outpatient pharmacy for
administration by the patient or administration to a patient residing in a long-term care facility
while in the facility.
 Ordering refers to ordering a drug that will be supplied by an inpatient pharmacy for
administration to the patient.
 An APRN must apply to the BON for prescriptive authority in each role and specialty in which
the APRN is authorized to practice.
 An APRN must have full or provisional authority to practice before the BON will issue a
prescriptive authority number.
 An APRN who prescribes controlled substances must have a current Texas DPS controlled
substances permit (renewed annually) and a current federal DEA certificate (renewed every
3 years).
 Carisoprodol (Soma®) was classified as a Schedule IV controlled substance in 2009.
 Physician supervisory requirements are different for each type of prescriptive authority site.
 APRNs must verify that each delegating and alternate physician has an active and
unrestricted Texas Medical License.
 In addition to establishing practice protocols, APRNs must keep certain permanent records at
each practice site.
 The Texas Medical Board has the authority to waive most site-based and physician
supervisory requirements for practices in which the requirements create an undue burden.
 Pre-signing prescriptions for Schedule II Controlled Substances is a felony.
 Both the delegating physician's and APRN's DEA numbers must appear on a prescription for
a controlled substance signed by an APRN. The APRN must also include his/her DPS
number.
 A practitioner may only prohibit a generic substitution by writing "brand necessary" on the
face of the prescription.
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62
 Prescriptive Authority includes the authority to sign for and distribute drug samples.
 Passage of SB 532 in 2009, reduced some supervisory requirements and added some
settings that could be designated as a primary practice site.
Introduction
Long before APRNs were granted prescriptive authority, APRNs who worked in hospital
settings, ordered drugs and medical devices for patients, but except for CRNAs, physicians
were often required to co-sign the orders and no APRN could sign a prescription. Now, Texas
law allows APRNs to prescribe drugs and medical devices if they work in a qualifying site. The
law pertaining to prescriptive authority is applicable to all advanced practice registered nurses
who sign prescriptions to be filled at outpatient pharmacies.
The statutes and rules pertaining to APRNs’ prescribing, ordering or obtaining drugs for patients
in Texas are the most complex in the nation. This chapter focuses on the issues that APRNs
practicing in Texas must know if they order or prescribe medications and medical devices. This
information is also relevant to physicians who delegate prescriptive authority, pharmacists who
dispense drugs, and attorneys who must interpret the law.
4.1 The History of APRN Prescriptive Authority in Texas
To understand the reason Texas has such a complex system of delegated and site-based
prescriptive authority, it helps to know the history of APRN prescriptive authority in Texas.
71st Texas Legislative Session Marks Beginning of APRN Prescriptive Authority
Advanced practice registered nurses in Texas were first granted the right to prescribe in 1989.
In 1988, funding cutbacks led to the federal government requiring rural health clinics to have a
NP, CNM, or PA at the clinic least 50% of the time. Texas wanted to take advantage of the
federal funds available for rural health clinics. Thus the economic incentives to grant prescriptive
authority to a few APRNs and PAs outweighed the opposition.
Texas Nurses Association and the Texas Association for Community Health Centers initiated
legislation. SB 1107 by Senator Carriker and its companion bill HB 2371 by Representative
McDonald gave RNs with specialized training limited prescriptive authority under physician
delegation. Ultimately the language in these bills was passed as an amendment to HB 18,
Omnibus Health Rescue Act of 1989. The bill added language to the Medical Practice Act
allowing physicians to delegate prescriptive authority to APRNs (then known as advanced nurse
practitioners) and PAs working in certain medically underserved sites.28
Just as now, prescriptive authority had to be delegated by a medical doctor (MD) or doctor of
osteopathy (DO). Physicians delegating prescriptive authority in medically underserved areas
were required to meet certain supervisory requirements established by the Texas Medical Board
including a 10% chart review. Other requirements were more restrictive than exist now. The
delegating physician was required to be onsite once every 5 days and pre-sign blank
prescriptions. The APRN or PA subsequently wrote the prescription and signed on a second
signature line. It was in this legislation that the term "carrying out or signing a prescription drug
order" originated.
The Board of Nursing was designated as the agency to determine the specialized training that
would be required for RNs permitted to prescribe. It is an interesting fact that the term
"advanced nurse practitioner" never appeared in H.B. 18 because medical organizations
A Guide for APRN Practice in Texas
63
opposed any recognition in statute that advanced practice registered nurses existed. The only
section of the Nursing Practice Act (§301.152, Texas Occupations Code) referring to APRNs is
still titled, “Rules Regarding Specialized Training.” Not until 1995 did the term "advanced
practice registered nurse" appear in any statute.
73rd Texas Legislature
While H.B.18 marked a significant advancement in the practice for APRNs in Texas, only a
small fraction of APRNs worked in sites that actually qualified for prescriptive authority.
Therefore, an independent prescriptive authority bill was filed on behalf of nursing in 1993. That
bill received a hearing, but never got out of committee.
74th Texas Legislature Expands Prescriptive Authority for APRNs
In 1994, the Texas Nurses Association (TNA) and Coalition for Nurses in Advanced Practice
(CNAP) worked to develop legislation and strategies that would be more successful in 1995.
The groups formed the Campaign to Achieve Prescriptive Authority and an independent
prescriptive authority bill was again filed on behalf of nursing. Medical organizations actively
opposed the bill, but the House Public Health Committee Chair, Representative Hugo Berlanga,
insisted that medicine and nursing negotiate to significantly expand prescriptive authority for
APRNs and PAs in this state. The result was language in SB 673 to expand prescriptive
authority to additional sites. Physicians also were given the option of continuing to pre-sign
prescriptions or simply allow the APRN to sign the prescription. Even though no one uses presigned prescriptions anymore, that option still remains in the law.
Even though very few CRNAs use prescriptive authority, 1995 was also important for them.
Language that had previously appeared only in a memorandum of understanding among the
nursing, pharmacy and medical boards became a statutory provision in §157.058 of the Medical
Practice Act. It assured CRNAs could continue selecting and administering anesthetic agents
for patients under an order from a surgeon.
Ad Hoc Committee on Collaborative Practice
Another important result of the 1995 session was formation of the Ad Hoc Committee on
Collaborative Practice. This committee included 5 physicians, 5 APRNs, and 5 PAs that
reported to their respective organizations. The goal of the group was to work together to solve
any problems resulting from implementation of SB 673 and to determine what statutory changes
were needed in 1997 that were mutually agreeable. However, the work of this group proved to
be mutually beneficial and continued through the 2003 Session. As a result, agreed upon bills
were filed each session. Most of the advancements in these bills focused on practice issues
related to reimbursement and clinical privileging. However, there were small advancements in
prescriptive authority attained in 1997, 1999 and 2001.
75th - 77th Legislative Sessions
The major accomplishment of the 1997 Texas Legislative Session was passage of HB 2846.
CNAP and TNA, as well as TMA (Texas Medical Association), THA (Texas Hospital
Association, and TAPA (Texas Academy of Physician Assistants) supported this bill. The
provisions in HB 2846 added school-based clinics as sites at which physicians could delegate
prescriptive privileges. The requirement for on-site physician's visits in medically underserved
clinics was also reduced from once a week to once every 10 days the APRN or PA is on site.
The cooperative efforts of the organizations in the Ad Hoc Committee on Collaborative Practice
led to passage of some important legislation for APRNs in 1999. However, only one provision
A Guide for APRN Practice in Texas
64
impacted prescriptive authority. SB 1131 allowed physicians to designate an LVN or RN to call
prescriptions to the pharmacy for APRNs.
SB 1166 passed in 2001. It allowed a physician in a primary practice site to also delegate
prescriptive authority in alternate practice sites where the physician has to be on site 20% of the
time. The bill also granted authority to the Texas Medical Board to waive some site-based and
supervisory requirements for delegating prescriptive authority to an APRN. The physician and
APRN must demonstrate that those requirements cause an undue burden without a
corresponding benefit to patient care.
Prescriptive Authority Expands to Include Controlled Substances in 2003
HB 1095 allowed physicians to delegate Controlled Substances, Schedules III - V, with three
restrictions. Prescriptions for controlled substances signed by APRNs are limited to a 30-day
supply. No refills are permitted without prior consultation with the physician (consultation noted
on chart). In addition the initial prescription for a controlled substance for children under 2 years
of age requires prior consultation (consultation noted on chart). The physicians who negotiated
the language in HB 1095 insisted on these restrictions and, as is the case with all the APRN
prescriptive authority law, these were not restrictions based on any evidence that they improve
patient outcomes. It was simply the best deal we could negotiate at the time.
The Moratorium 2003 - 2007
To gain the medical organizations' support for the legislative package in 2003, nursing
organizations agreed to a full moratorium on any further expansions in scope of practice through
the 2007 Legislative Session. However, the Texas Society of Anesthesiology decided the
moratorium on anesthesia issues should end after the 2003 Session, or any special sessions
that followed. Since the threat of additional special sessions continued into fall 2004, the
moratorium on anesthesia issues lasted through most of 2004. This agreement with medical
organizations precluded any changes in prescriptive authority until the 2009 Legislative Session
unless agreed to by all parties, and that did not occur.
APRNs Support Nursing Board-Granted Prescriptive Authority in 2009
Prior to the 2009 session CNAP participated in talks with medical organizations to explore
possible agreement on legislative language. We knew that medical organizations would not
agree to end delegated prescriptive authority but physicians indicated they would consider
ending site-based restrictions. However, in the end, the medical organizations insisted that
physicians must be limited to delegating prescriptive authority in only certain sites and
negotiations ended in September 2008.
Therefore, 2009 was the first legislative session in 14 years in which legislation was introduced
to include diagnosis and prescribing in the APRN scope of practice. Representative Wayne
Christian filed HB 1107 and Rep. Eddie Rodriguez co-authored the bill. Though the bill never
made it out of the House Public Health Committee, HB 1107 had a lengthy hearing. Late in the
session the issue was again passionately debated on the House Floor when Representative
Christian offered an amendment to substitute the language in his bill into SB 532. While his
amendment failed, it was the first time in history that the full Texas House heard debate about
independent prescriptive authority for APRNs.
Sen. Glenn Hegar and Rep. Rob Orr filed middle ground legislation. SB 680 and HB 696
continued physician delegation but would end site-based and controlled substances restrictions
on a physician’s authority to delegate prescriptive authority. Both bills had committee hearings,
but, even with multiple authors and co-authors in the House, both bills died in committee.
A Guide for APRN Practice in Texas
65
81st Legislature Passes Retail Clinic Bill
Ultimately, the bill that passed in 2009 was one negotiated by representatives of major retail
clinics, the Texas Medical Association and the Texas Academy of Family Physicians. Rep. Orr
offered some amendments on the House Floor that improved the bill, but SB 532, authored by
Senator Dan Patrick and sponsored by Rep. Garnet Coleman, primarily relaxed requirements
for physicians in alternate practice sites. The amendment offered by Rep. Orr allows physicians
to delegate to four APRNs and/or PAs in sites that had previously been limited to three. APRNs
and PAs are also able to prescribe a greater quantity of controlled substances, a 90-day supply
instead of 30-days. Updates throughout this chapter reflect changes in prescriptive authority
created by SB 532 that went into effect on September 1, 2009.
4.2 Definitions
APRNs who prescribe in Texas must understand certain legal terms that are included in Texas
statutes and rules. For each term list below, at least one legal definition is given with a hyperlink
to the reference. In some cases, more than one definition is given because rule definitions may
contain information not included in statute. Additional explanation is included as needed.
Carrying out or signing a prescription drug order
§157.051 (2), Texas Occupations Code (Medical Practice Act)
“Carrying out or signing a prescription drug order" means completing a prescription drug
order pre signed by the delegating physician, or the signing of a prescription by a
registered nurse or physician assistant.
22 TAC §193.2 (3) (TMB Rules)
Signing a prescription drug order, or completing a prescription drug order presigned by
the delegating physician, by an advanced practice nurse or physician assistant after
properly documented delegation of prescription authority. The following information shall
be provided on each prescription: the patient's name and address; the drug to be
dispensed; directions to the patient for taking the drug; dosage; the intended use of the
drug, if appropriate; the name, address, and telephone number of the physician; the
name, address, telephone number, identification number, and signature of the physician
assistant or advanced practice nurse completing or signing the prescription drug order;
the date; and the number of refills permitted. This also includes the ability of a physician
assistant or advanced practice nurse to telephone prescriptions in to a pharmacy under
his or her prescriptive authority.
The term, “carrying out prescriptive drug orders” was coined in 1989 to draw a clear distinction
between the prescriptive privileges afforded physicians versus APRNs or PAs. The term clarifies
that an APRN or PA may sign a prescription, but the authority to write that prescription stems
from a physician who is delegating that authority to the APRN or PA. The term is also included
in BON and pharmacy board rules.29
The second definition (above) is from the Texas Medical Board (TMB) Rules. It is expanded
from the definition in the Medical Practice Act. The TMB adds information to this definition and
the APRN is responsible for practicing in accordance with that expanded definition just as the
APRN must conform to provisions in any other applicable portion of the rules. In this case, the
TMB primarily added information that is included in the pharmacy board definition.
Those not familiar with the history of prescriptive authority in Texas are confused by the
reference to "presigned" prescription drug orders. From 1989 through implementation of SB 673
A Guide for APRN Practice in Texas
66
in 1995, delegating physicians were required to presign prescriptions completed by an APRN or
PA. Since that time, no one uses presigned prescription forms, but the option still exists.
Controlled Substance
§481.002(5), Texas Health and Safety Code (Controlled Substances Act)
22 TAC §222.1(5) (BON Rules)
"Controlled substance" means a substance, including a drug, an adulterant, and a
dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The
term includes the aggregate weight of any mixture, solution, or other substance
containing a controlled substance.
§551.003 (11), Texas Occupations Code (Pharmacy Practice Act)
"Controlled substance" means a substance, including a drug:
(A) listed in Schedule I, II, III, IV, or V, as established by the commissioner of public
health under Chapter 481, Health and Safety Code, or in Penalty Group 1, 1-A, 2, 3,
or 4, Chapter 481; or
(B) included in Schedule I, II, III, IV, or V of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. Section 801 et seq.).
In addition to the definition in the Pharmacy Act and identical definitions in the Health & Safety
Code (Controlled Substances Act) and Texas BON Rules above, the term is also similarly
defined in the Texas State Board of Pharmacy (TSBP) Rules, and the Texas Medical Board
(TMB) Rules.30
Controlled substances are drugs determined by the federal or Texas government to have
addictive qualities, and thus the potential for abuse. Therefore these drugs are subject to more
controls than other prescription drugs. The schedules are based on the abuse potential of the
drug and the recognized medical use.
Drugs in Schedule I have no medical use recognized and a high potential for abuse. Schedule I
drugs are generally referred to as "street drugs" and are only legally available for research. The
drugs in the other Schedules have a recognized medical use and are available by prescription.
Schedule II drugs have the highest abuse potential of those with a recognized medical use.
Drugs in Schedule II must be prescribed on a triplicate prescription form. While these drugs may
not be prescribed by APRNs in Texas, under a standing medical order, APRNs may order these
drugs in Texas hospitals. Examples of these drugs include morphine, codeine, Demerol,
Percodan, Dexedrine, and Ritalin.
Schedules III - V drugs have a decreasing level of abuse potential, with Schedule III drugs
being more addictive than Schedule V. These are the categories of controlled substances that
APRNs in Texas may prescribe, and prescriptions for these drugs are written on standard
prescription forms. However, the APRN’s and delegating physician’s DPS and DEA numbers
must appear on those prescriptions.
The Department of State Health Services has a very clear and succinct description of each
controlled substances schedule in The Texas Guide to School Health Programs.xlix By state law,
each January the Commissioner of Health publishes a list of controlled substances with drugs
listed by schedule.31
xlix
DSHS. (2002). Texas School Health Guidelines, Chapter 5, pages 212 -213. Accessed:
http://www.dshs.state.tx.us/schoolhealth/pgramguide.shtm.
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In addition, the Texas Legislature occasionally reclassifies drugs into one of the Controlled
Substances Schedules. In 2009, because of abuse by disreputable pain clinics, carisoprodol
(Soma®) was reclassified as a Schedule IV Controlled Substance.
Prescriptions for controlled substances must be completed in accordance with §481.074(k),
Health & Safety Code. Pharmacies must transmit the prescription information, including the
DPS number of the prescribing practitioner to the Texas Prescription Program.32
The penalty groups that are referenced in the definitions of "controlled substance" establish the
level of criminal penalty attached to violations of the Texas Controlled Substances Act. The
drugs and precursors that fall in Penalty Groups 1-4 are listed in §481.102 - §481.105, Health &
Safety Code.33
Dangerous Drug
§483.001, Texas Health & Safety Code (Dangerous Drug Act)
(2) "Dangerous drug" means a device or a drug that is unsafe for self-medication and
that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter
481 (Texas Controlled Substances Act). The term includes a device or a drug that bears
or is required to bear the legend:
(A) "Caution: federal law prohibits dispensing without prescription" or "Rx
only" or another legend that complies with federal law; or
(B) "Caution: federal law restricts this drug to use by or on the order of a
licensed veterinarian."
The term "dangerous drug" denotes a drug that can only be dispensed with a prescription from
an authorized health care professional (practitioner), excluding controlled substances. In other
words, dangerous drugs are all prescription drugs other than controlled substances. This
definition (or one very similar) is also used in the Pharmacy Practice Act and TSBP, BON and
TMB Rules.34
Occasionally the term, "dangerous drugs," is used by medical organizations to alarm the public
that non-physician providers want to prescribe these drugs without a physician's supervision. It
is important for every APRN to know the source of this legal term and correct any
misunderstanding that might be created by using the term in public venues. One can simply
advise the individual that "dangerous drugs" are simply prescription drugs that do not even
include controlled substances.
Designated Agent
§551.003 (14), Texas Occupations Code (Pharmacy Practice Act)
(14) "Designated agent" means:
(A) an individual, including a licensed nurse, physician assistant, or
pharmacist:
(i) who is designated by a practitioner and authorized to communicate a
prescription drug order to a pharmacist; and
(ii) for whom the practitioner assumes legal responsibility;
(B) a licensed nurse, physician assistant, or pharmacist employed in a health
care facility to whom a practitioner communicates a prescription drug order; or
(C) a registered nurse or physician assistant authorized by a practitioner to
administer a prescription drug order for a dangerous drug under Subchapter B,
Chapter 157.
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This definition in the Pharmacy Practice Act is almost identical to that in the Dangerous Drug
Act. Both definitions were written before APRNs were included in the definition of practitioner
(see below). This allowed pharmacists to fill prescriptions that were called to the pharmacy by
APRNs and is still used as the primary method to obtain medications for patients in sites that do
not qualify for prescriptive authority.
The Medical Practice Act allows physicians to delegate anything to anyone the physician thinks
is competent. Therefore physicians can designate an office clerk to call prescriptions to the
pharmacy. APRNs do not have this authority. (For more information see Section 4.17.)
Device
§431.002 (13), Texas Health & Safety Code (Texas Food, Drug and Cosmetic Act)
"Device," except when used in Sections 431.003, 431.021(l), 431.082(g), 431.112(c) and
431.142(c), means an instrument, apparatus, implement, machine, contrivance, implant,
in vitro reagent, or other similar or related article, including any component, part, or
accessory, that is:
(A) recognized in the official United States Pharmacopoeia National Formulary or any
supplement to it;
(B) intended for use in the diagnosis of disease or other conditions, or in the cure,
mitigation, treatment, or prevention of disease in man or other animals; or
(C) intended to affect the structure or any function of the body of man or other
animals and that does not achieve any of its principal intended purposes through
chemical action within or on the body of man or other animals and is not
dependent on metabolization for the achievement of any of its principal intended
purposes.
§551.003 (15), Texas Occupations Code (Pharmacy Practice Act)
"Device" means an instrument, apparatus, implement, machine, contrivance, implant, in
vitro reagent, or other similar or related article, including a component part or accessory
that is required under federal or state law to be ordered or prescribed by a practitioner.
It is important to understand the definition of device because an APRN's prescriptive authority
includes ordering and prescribing medical devices. Medical devices include a huge array of
items used individually or in combination for diagnosis, monitoring, or treatment. The term,
"medical device" includes any device for delivering medications such as spacers for
administering inhaled drugs, IV catheters, tubing and infusion pumps; devices to modify the
human physiology and anatomy, such as heart valves and pacemakers; and devices to
diagnose or monitor such as glucose monitors, oxygen sensors and diagnostic imaging
machines.
Dispense
§551.003 (16), Texas Occupations Code (Pharmacy Practice Act)
"Dispense" means to prepare, package, compound, or label, in the course of
professional practice, a prescription drug or device for delivery to an ultimate user or the
user's agent under a practitioner's lawful order.
The definition above is from the Pharmacy Practice Act and the same definition is used in the
TSBP Rules. Similar definitions are in the Texas Dangerous Drug and Controlled Substances
Acts.
It is important to note that there is a distinction between dispensing and providing a drug. The
practice of pharmacy includes dispensing drugs and medical devices. APRNs may “provide”
A Guide for APRN Practice in Texas
69
prepackaged drugs, such as samples or drugs from a Class D pharmacy. CNMs caring for
women during labor or the immediate postpartial period in out of hospital settings may provide
controlled substances to their patients. For the definition of “provide” refer to page 55 of this
chapter.
Health Professional Shortage Area
22 TAC §193.2 (6) (TMB Rules)
Health professional shortage area (HPSA)
(A) An area in an urban or rural area of Texas (which need not conform to the
geographic boundaries of a political subdivision and which is a rational area for the
delivery of health services) which the secretary of health and human services
determines has a health manpower shortage and which is not reasonably accessible to
an adequately served area;
(B) a population group which the secretary determines to have such a shortage; or
(C) a public or nonprofit private medical facility or other facility which the secretary
determines has such a shortage as delineated in 42 United States Code §254(e)(a)(1).
HPSA is one type of site that qualifies as a site serving a medically underserved population and
therefore allows physicians to delegate prescriptive authority in those sites. More information on
identifying HPSA sites is included in Section 4.7 in this chapter.
Medically Underserved Area (MUA)
22 TAC §193.2 (7) (TMB Rules)
Medically underserved area (MUA)--An area or population group designated by the
USDHHS as an area with a shortage of personal health services. Also includes an area
defined by rule adopted by the Texas Board of Health that is based on demographics
specific to this state, geographic factors that affect access to health care, and
environmental health factors.
This is a type of designation that qualifies for prescriptive authority as a medically underserved
site. The reference to the Texas Board of Health is outdated and this definition will be updated
to refer to the Department of State Health Services the next time the TMB reviews this rule. The
DSHS rule on designating sites serving medically underserved populations is in 25 TAC,
Chapter 13, Subchapter C. Additional information is in Section 4.7.
Medication Order
§551.003 (24), Texas Occupations Code (Pharmacy Practice Act)
"Medication order" means an order from a practitioner or a practitioner's designated
agent for administration of a drug or device.
The key words in this definition are "for administration." A medication order is written to order a
drug or device to be administered to the patient. The difference between a prescription drug
order (defined below) and a medication order is discussed in more detail in the Sample Practice
Agreement Protocol at the end of this chapter.
Practitioner
§551.003 (34), Texas Occupations Code (Pharmacy Practice Act)
"Practitioner" means:
(A) a person licensed or registered to prescribe, distribute, administer, or dispense a
prescription drug or device in the course of professional practice in this state, including a
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70
physician, dentist, podiatrist, or veterinarian but excluding a person licensed under this
subtitle;
(B) a person licensed by another state, Canada, or the United Mexican States in a health
field in which, under the law of this state, a license holder in this state may legally
prescribe a dangerous drug;
(C) a person practicing in another state and licensed by another state as a physician,
dentist, veterinarian, or podiatrist, who has a current federal Drug Enforcement
Administration registration number and who may legally prescribe a Schedule II, III, IV,
or V controlled substance, as specified under Chapter 481, Health and Safety Code, in
that other state; or
(D) an advanced practice registered nurse or physician assistant to whom a physician
has delegated the authority to carry out or sign prescription drug orders under Sections
157.0511, 157.052, 157.053, 157.054, 157.0541, or 157.0542.
The above definition was amended to include APRNs in 2001. Similar definitions of
"practitioner" were also added that year to the Controlled Substances and Dangerous Drug Acts
in the Texas Health and Safety Code. The fact that APRNs are included in the definition of
practitioner in these statutes is significant and has reduced the number of pharmacists who
question their authority to fill a prescription signed by an APRN.
However, one should note that the definition refers to specific sections of the Medical Practice
Act. Therefore, the definition also makes it clear that the authority of APRNs to prescribe stems
from the delegating physician.
Prescription Drug
§551.003 (36), Texas Occupations Code (Pharmacy Practice Act)
"Prescription drug" means:
(A) a substance for which federal or state law requires a prescription before the
substance may be legally dispensed to the public;
(B) a drug or device that under federal law is required, before being dispensed or
delivered, to be labeled with the statement:
(i)
"Caution: federal law prohibits dispensing without prescription" or "Rx
only" or another leg end that complies with federal law; or
(ii)
"Caution: federal law restricts this drug to use by or on the order of a
licensed veterinarian"; or
(C) a drug or device that is required by federal or state statute or regulation to be
dispensed on prescription or that is restricted to use by a practitioner only.
Prescription Drug Order
§551.003 (37), Texas Occupations Code (Pharmacy Practice Act)
"Prescription drug order" means:
(A) an order from a practitioner or a practitioner's designated agent to a pharmacist for a
drug or device to be dispensed; or
(B) an order under Subchapter B, Chapter 157.
This definition was written before APRNs were added to the definition of "practitioner." The
reference to "Subchapter B, Chapter 157" in this definition refers to the subchapter in the
Medical Practice Act that grants the authority of a physician to delegate prescriptive authority to
an APRN or PA (§§157.051 - 157.060, Texas Occupations Code).
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If one reads this definition without considering other applicable portions of the law, one might
assume that APRNs have the authority to designate an agent to communicate prescriptions to a
pharmacist. This is not the case. This is a right granted only to physicians and is further
discussed in Section 4.17.
Protocols
22 TAC §193.2 (10) (TMB Rules)
Protocols--Delegated written authorization to initiate medical aspects of patient care
including authorizing a physician assistant or advanced practice nurse to carry out or
sign prescription drug orders pursuant to the Medical Practice Act, Texas Occupations
Code Annotated, §§157.051 - 157.060 and §193.6 of this title (relating to the Delegation
of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and
Advanced Practice Nurses). The protocols must be agreed upon and signed by the
physician, the physician assistant and/or advanced practice nurse, reviewed and signed
at least annually, maintained on site, and must contain a list of the types or categories of
dangerous drugs and controlled substances available for prescription, limitations on the
number of dosage units and refills permitted, and instructions to be given the patient for
followup substances that may not be prescribed. Protocols shall be defined to promote
the exercise of professional judgment by the advanced practice registered nurse and
physician assistant commensurate with their education and experience. The protocols
used by a reasonable and prudent physician exercising sound medical judgment need
not describe the exact steps that an advanced practice nurse or a physician assistant
must take with respect to each specific condition, disease, or symptom.
The term "protocols" is the most misunderstood term of all those applied to prescriptive
authority. This is a frequently used term in hospitals and clinics. Unfortunately, the generally
used medical definition of "protocol" refers to "a written plan specifying the procedure to be
followed."l Obviously, this definition differs significantly from the legal definition above from the
TMB Rules that specifically states the protocols "need not describe the exact steps that an
advanced practice registered nurse or a physician assistant must take…." In essence, the
"protocols" used by physicians as the written document to authorize prescriptive authority and
other medical acts might be more accurately named "practice agreement," "collaborative
agreement" or "delegation agreement." The protocol is further discussed in Section 4.22 and is
hereafter referred to as Practice Agreement Protocol (PAP). A sample PAP is included at the
end of this chapter.
Some APRNs wonder if protocols can be given another name. No law or rule specifies that this
document must be given any particular title. While "protocols" is the legal term for the document,
no matter what the document is called, it is important for both the physician and APRNs to know
this document is the one that the Medical and Nursing Boards expect to see if board staff is
auditing your practice and asks to see the protocols.
Provide
§551.003 (39), Texas Occupations Code (Pharmacy Practice Act)
"Provide" means to supply one or more unit doses of a nonprescription drug or
dangerous drug to a patient.
l
Anderson, K.N., Anderson, L.E, and Glanze, W.D. (1994). Mosby’s Medical, Nursing, and Allied Health
Dictionary (4th Ed), 1290.
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72
Standing Delegation Order
22 TAC §193.2 (12)
Standing delegation order--Written instructions, orders, rules, regulations, or procedures
prepared by a physician and designed for a patient population with specific diseases,
disorders, health problems, or sets of symptoms. Such written instructions, orders, rules,
regulations, or procedures shall delineate under what set of conditions and
circumstances action should be instituted. These instructions, orders, rules, regulations,
or procedures are to provide authority for and a plan for use with patients presenting
themselves prior to being examined or evaluated by a physician to assure that such acts
are carried out correctly and are distinct from specific orders written for a particular
patient, and shall be limited in scope of authority to be delegated as provided in §193.4
of this title (relating to Scope of Standing Delegation Orders). As used in this chapter,
standing delegation orders do not refer to treatment programs ordered by a physician
following examination or evaluation by a physician, nor to established procedures for
providing of care by personnel under direct, personal supervision of a physician who is
directly supervising or overseeing the delivery of medical or health care. Such standing
delegation orders should be developed and approved by the physician who is
responsible for the delivery of medical care covered by the orders. Such standing
delegation orders, at a minimum, should:
(A) include a written description of the method used in developing and
approving them and any revision thereof;
(B) be in writing, dated, and signed by the physician;
(C) specify which acts require a particular level of training or licensure and
under what circumstances they are to be performed;
(D) state specific requirements which are to be followed by persons acting under same
in performing particular functions;
(E) specify any experience, training, and/or education requirements for those persons
who shall perform such orders;
(F) establish a method for initial and continuing evaluation of the competence of those
authorized to perform same;
(G) provide for a method of maintaining a written record of those persons authorized to
perform same;
(H) specify the scope of supervision required for performance of same, for example,
immediate supervision of a physician;
(I) set forth any specialized circumstances under which a person performing same is to
immediately communicate with the patient's physician concerning the patient's condition;
(J) state limitations on setting, if any, in which the plan is to be performed;
(K) specify patient record-keeping requirements which shall, at a minimum, provide for
accurate and detailed information regarding each patient visit; personnel involved in
treatment and evaluation on each visit; drugs, or medications administered, prescribed
or provided; and such other information which is routinely noted on patient charts and
files by physicians in their offices; and
(L) provide for a method of periodic review, which shall be at least annually, of such plan
including the effective date of initiation and the date of termination of the plan after which
date the physician shall issue a new plan.
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This is a significant definition because the law on delegation of prescriptive authority repeatedly
refers to "standing delegation orders" as one type of written authorization under which a
physician may delegate prescriptive authority to an APRN. However, this mechanism includes
more elements than a protocol, and therefore is rarely, if ever used for the delegation of
prescriptive authority.
Standing Medical Orders
22 TAC §193.2 (13) (Medical Board Rules)
Standing medical orders--Orders, rules, regulations or procedures prepared by a
physician or approved by a physician or the medical staff of an institution for patients
which have been examined or evaluated by a physician and which are used as a guide
in preparation for and carrying out medical or surgical procedures or both. These orders,
rules, regulations, or procedures are authority and direction for the performance for
certain prescribed acts for patients by authorized persons as distinguished from specific
orders written for a particular patient.
As indicated by the definition, this is a mechanism that is only used in institutions such as
hospitals where an organized medical staff exists. It is also a mechanism under which
physicians may delegate certain aspects of care that are not permitted under delegated
prescriptive authority. For instance, the provisions for standing medical orders may be used by a
physician to permit an NP or CNS to write orders for Schedule II, Controlled Substances in
hospital settings. Standing orders may also be used for APRNs to initiate emergency treatment
prior to the physician examining the patient.
It is generally recommended that standing delegation orders be used with caution because their
greater specificity obligates the APRN to precisely follow every step. If a bad outcome occurs
and the APRN did not follow the orders precisely, then it might be alleged the negative outcome
resulted from not following the standing medical order.
4.3 Obtaining & Renewing a BON Prescriptive Authority Number
Each APRN who signs a prescription in Texas must have a prescriptive authority number issued
by the Texas BON. If the APRN is being authorized to practice in more than one advanced
practice role and population-focus area, then the APRN must apply separately for
prescriptive authority in each role and population for which the APRN seeks prescriptive
authority.
The Board of Nursing describes the qualifications an APRN must satisfy to receive a
prescriptive authority number and the process for issuing the prescriptive authority number in
BON Rule 222.2.
Approval for Prescriptive Authority
22 TAC §222.2 [The link is to current rules. The rule language below includes underlined and
striken language that are changes expected to be adopted at the January 2010 BON meeting.]
(1) Credentials: To be approved by the board to carry out or sign prescription
drug orders and issued a prescription authorization number, a Registered
Nurse (RN) shall:
(2) have full or provisional authorization by licensure from the board to practice
as an advanced practice registered nurse. RNs with Interim Approval to
practice as advanced practice registered nurses are not eligible for
prescription authority.
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74
(A) RNs with provisional authorization to practice as graduate advanced practice
nurses who are eligible for prescription authorization numbers shall be limited to
prescribing for categories of dangerous drugs only.
(B) RNs with Interim Authorization to practice as advanced practice nurses are not
eligible for a prescription authorization number;
(3) file the completed application for Prescriptive Authority and submit such
(A) evidence as required by the board to verify the following educational
qualifications:
(B) To be eligible for Prescriptive Authority, advanced practice registered nurses
must have successfully completed graduate-level courses in
pharmacotherapeutics, pathophysiology, advanced assessment, and diagnosis
and management of problems diseases and conditions within the clinical
specialty population-focus area.
i. Nurse Practitioners, Nurse-Midwives and Nurse Anesthetists will be
considered to have met the course requirements of this section on the
basis of courses completed in the advanced practice nursing educational
program.
ii. Clinical Nurse Specialists shall submit documentation of successful
completion of separate, dedicated courses in the content areas described
in subsection (A) of this section. These courses shall be academic
courses from a regionally an accredited institution with a minimum of 45
clock hours per course.
iii. The board, by policy, may determine that certain specialties of Clinical
Nurse Specialists meet one or more of the course requirements on the
basis of the advanced practice nursing educational program. [Note: The
BON considers psychiatric-mental health clinical nurse specialists
certified by ANCC to meet the educational requirements for diagnosis and
management and pathophysiology. PMH-CNSs will have to submit proof
they completed advanced health assessment and pharmacotherapeutics.]
(C) Clinical Nurse Specialists who have been approved by the board as advanced
practice registered nurses by petition on the basis of completion of a non-nursing
master's degree shall not be eligible for prescriptive authority.
(4) Sites: Prescribing privileges are limited to eligible sites to include sites
serving certain medically underserved populations, physician's primary
practice sites, alternate sites, and facility-based practice sites.
(5) Exceptions granted by the Texas State Board of Medical Examiners Board:
Requirements for utilizing limited prescriptive authority may be modified or
waived if a delegating physician has received a modification or waiver from
the Texas State Medical Board of Medical Examiners of any site or
supervision requirements for a physician to delegate the carrying out or
signing of prescription drug orders to the advanced practice registered nurse.
While the rules clearly state that the APRN must have full licensure before a prescriptive
authority number will be issued, the BON allows APRNs, including new graduates, to
simultaneously apply for authorization to practice and prescriptive authority. The "Authorization
as an Advanced Practice Registered Nurse (APRN) Application (with option for Prescriptive
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75
Authority)" is available online.li A separate prescriptive authority application form exists for those
who are already authorized in their role and specialty and apply for the prescriptive authority
number later.lii In either case, the BON does not issue the prescriptive authority number until the
board has granted full licensure to practice as an APRN. To find both application forms for
prescriptive authority and much more information pertinent to APRN practice, refer to the APRN
section of the BON website, www.bon.state.tx.us/gen-apn.htm.
Prescriptive Authority Renewal
Prescriptive authority, APRN authorization, and the RN license are renewed once every two
years during the APRN's birth month. All three must be renewed in order for the APRN to
continue writing prescriptions. Prescriptive authority renewal requires that the APRN complete
5 hours of pharmacotherapeutic continuing education (CE) every two years, in addition to the 20
hours of CE required in the APRN's role and population-focus area.
The prescriptive authority renewal process is outlined in BON Rule 222.3.
Renewal of Prescriptive Authority
22 TAC §222.3 [The link is to current rules. The rule language below includes underlined and
striken language that are changes expected to be adopted at the January 2010 BON meeting.]
(a) The advanced practice registered nurse shall renew the privilege to carry out or sign
prescription drug orders in conjunction with the RN and advanced practice license
renewal application.
(b) The advanced practice registered nurse seeking to maintain prescriptive authority
shall attest, on forms provided by the board, to completing at least five contact hours of
continuing education in pharmacotherapeutics within the preceding biennium.
(c) The continuing education requirement in subsection (b) of this section shall be in
addition to continuing education required under Chapter 216 of this title (relating to
Continuing Education).
4.4 Steps to Prescribing Controlled Substances including
Obtaining and Renewing DPS and DEA Numbers
Just like a physician, an APRN who writes a prescription for a controlled substance in Texas
must have a state controlled substances permit issued by the Texas Department of Public
Safety (DPS) and a Federal Drug Enforcement Agency (DEA) number. There are six steps each
APRN must complete before signing a prescription for a controlled substance, and those steps
include more than just obtaining DPS and DEA numbers.
STEP 1 - APRNs must have full authorization to practice as an APRN from the BON. Those with
Interim Approval or practicing on a Volunteer Retired license are not eligible to prescribe
controlled substances or any other drugs.
STEP 2 -- The delegating physician must agree to delegate authority to prescribe controlled
substances and affirm the agreement in the practice protocols.
li
Texas BON Advanced Practice Registered Nurse (APRN) Application accessed at
http://www.texasonline.state.tx.us/app/orig/index.jsp?AGENCY_NAME=bne&CONFIG_ID=BNE_APRN&LICEN
SE_ID=01.
lii
BON Prescriptive Authority Application accessed at http://www.bon.state.tx.us/practice/pdfs/Rxapp.pdf.
A Guide for APRN Practice in Texas
76
The protocols should reflect that the APRN may prescribe controlled substances, what
schedules of controlled substances may be prescribed, and any restrictions on that authority. By
law, the APRN has certain restrictions on prescribing controlled substances, and the BON
requires that these restrictions be included in protocols. APRNs are limited to prescribing:
1. Schedules III-V;
2. a maximum 90-day supply with no refill;
3. additional prescriptions for the individual, only with prior consultation with the physician; and
4. for persons younger than 2 years of age, only after prior consultation with the physician.
In addition, any consultation with the physician must be noted in the patient's chart. The
physician can place additional limitations on the APRN's authority to prescribe controlled
substances just as he/she can in delegating authority to prescribe any other drugs. If the
physician elects to impose any additional restrictions, include those limitations in the protocols.
STEP 3 - The APRN must register as a person who may prescribe controlled substances with
the Texas Department of Public Safety (DPS). This cannot be accomplished online, but the
APRN can request the application form by email. There is a $25 fee and the permit must be
renewed annually.
To request the DPS registration form, go to the Texas Department of Public Safety website,
Controlled Substances Registration Program.35 The APRN must request the application form
and DPS sends it accompanied by a cover letter that explains what information and signatures
must be included on the completed form. For efficient processing, the following instructions
must be followed precisely.

Provide the name and business address of the practice site. (Addresses must be a physical
location, not simply a PO Box.) Even if you have prescriptive privileges in more than one site,
most APRNs will only have to apply for a permit for one site. Only if the APRN is the person
responsible for storing and maintaining records on controlled substances at multiple sites will
the APRN have to register for more than one permit. If the physician/medical director is
responsible for the controlled substances, then the APRN only registers for the primary site. If
the site changes in the future, the APRN will be required to notify DPS in writing and the new
delegating physician will need to sign the form (see below).

APRNs must specify the APRN title they have been authorized to use by the Board of
Nursing (e.g. FNP, GNP, PNP, etc). Avoid academic and certification credentials such as MSN,
BC or C, etc. Using these credentials on the application to identify the APRN's role and
specialty could cause the application to be returned.

Write your name on the application identically to your name as it appears on your RN
license. If there are name changes, the name must be changed with the BON prior to submitting
the application to DPS.

The name, contact information, and signature of the delegating physician are required. If
additional physicians currently delegate prescriptive authority, they must also sign the
application form.

Your Texas RN license number. Providing your national certification number rather than your
RN license number will cause delays in processing or may result in the application being
returned to you.
Once submitted, the DPS issues the permit within 60 days. However, many APRNs receive the
permit much more quickly.
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STEP 4 - Obtain a DEA number. The application form for the federal Drug Enforcement
Administration (DEA) license number can be submitted by two methods. One may download
and complete the PDF version of the DEA 224 application form and mail the application. This is
the only method by which one can pay by check. The second method is highly recommended if
the applicant's browser supports 128-bit encryption and can pay the application fee using VISA,
MasterCard, Discover, or American Express. This online application system allows one to
complete and submit the form online and will reduce potential errors and processing time. For
the online submission form, go to the DEA Diversion website. The application fee is $551. That
fee covers a period of approximately 3 years. (The initial DEA registration period may vary from
a minimum of 28 months to a maximum of 39 months.)
The DEA registration process is very easy, but it is important to get all the details correct. Any
inconsistent answer can cause delay in processing your application. In completing the
application form, there are a few questions that may require explanation.
In Section 2, applicants are asked information on business activities and schedules of drugs. In
the space asking for business activity, select "Mid-Level Practitioner" and for the professional
degree, select "NP." Select "NP" no matter what type of APRN you are, even if you are a
CNS, CRNA, or CNM. In this instance, NP represents a broad category and it is the most
appropriate option available. DEA staff in Washington D.C. are aware of this limitation and in the
future may expand the number of options available under professional degree." However, until
then, no matter what type of APRN you may be, you are required to select from the list provided
on the application and will not be misrepresenting yourself if you mark "NP" on this application if
there is no option for your APRN role.
In Section 3, applicants are asked to mark the drug schedules. APRNs in Texas check four
boxes, "Schedule III Narcotic," "Schedule III Non Narcotic," "Schedule IV," and "Schedule V."
Do not check the box labeled "order forms." These order forms are triplicate prescription pads
and are only required in Texas when prescribing Schedule II drugs.
In Section 4, enter your Texas RN license number. Under "State Controlled Substance
License," mark "yes" if you already received your DPS permit; then record the DPS permit
number in the box labeled "State Controlled Substance No." If you have applied for your DPS
permit, but not yet received it, mark "Pending." Remember that the DEA application you submit
will not be processed until the DPS permit has been issued so there is no advantage in
submitting the DEA application before receiving the DPS permit.
STEP 5 – Educate yourself about the drugs classified as controlled substances and the issues
involved in treating pain and prescribing controlled substances. To review the medications that
are included in the various schedules of controlled substances, go to the DEA Diversion website
or to the Texas Department of State Health Services.36 Be aware that drugs are reclassified
each year. For instance, in 2009, carisoprodol (Soma) was classified as a Schedule IV drug.
Learn to spot drug seeking behavior. TxDPS published a 2-page Guide to Prescription Drug
Diversion to educate practitioners. Every APRN prescribing controlled substances should be
very familiar with this information.
APRNs should also be wary of taking jobs with pain or weight loss clinics. Make sure the clinical
standards include thorough evaluations before prescribing medications and very good follow-up
for these patients. Pain clinics should follow all the guidelines for pain management in Texas
Medical Board Rules 170.1 – 170.3. Illegitamate clinics exist all over the state and they are
actively recruiting APRNs. Just because a physician practices in the clinic does not
A Guide for APRN Practice in Texas
78
automatically mean the physician is behaving ethically or even legally. Don’t get caught in the
illegal activities of these clinics!
APRNs should be aware that SB 911 (Acts of the 81st Texas Legislature) requires practices in
which health care practitioners prescribe opioids, benzodiazapines, barbiturates, or carisoprodol
for a majority of patients may be required to register with the TMB. This only applies to practices
in which patients are also only given these drugs patients are not treated through other
therapies. Such practices may only be owned by physicians and must meet other requirements.
STEP 6 – Writing the prescription for a controlled substance. Prescriptions for Controlled
Substances Schedules III - V are written on a standard prescription form or may be faxed or
called to the pharmacy. These prescriptions must include the APRN’s DPS and DEA
numbers and the delegating physician’s DEA number. APRNs do not need to change their
prescription pads just because they obtain DPS and DEA numbers. While some may wish to
have those numbers professionally printed on the prescription form in addition to their BON
prescriptive authority number, it is not required to do so. The APRN may hand write or stamp
these DEA numbers on the prescription form.
The Texas State Board of Pharmacy requires the following information to be included on the
prescription form.

APRN's name and professional credentials (i.e. RN, FNP)
 APRN's BON prescriptive authority number
 APRN's practice site address and phone number
 Delegating physician's name and professional credentials
 Delegating physician's business address and phone number (if different than APRN's)
 APRN's DPS and DEA numbers and delegating physician’s DEA number, if the prescription is
for a controlled substance.
To read the pertinent BON rules that include other requirements for prescriptions, read BON
Rule 222.4 (c).
Please remember that promoting good relationships with pharmacists in your area is always
time well spent. If you will be prescribing controlled substances, it is a good idea to write a letter
to all the local pharmacies explaining that physicians have the option of delegating prescriptive
authority for Controlled Substances, Schedules III - V, and that your collaborating physician has
delegated that authority. You can refer the pharmacists to the explanation of HB 1095 in the
TSBP Newsletter, Fall 2003 issue, page 2, and to TSBP Rule 291.34(b)(6)(C).37 The pharmacist
may also call the TSBP for information on filling prescriptions signed by an advanced practice
registered nurse or go to the TSBP Website.
Renewal of DPS and DEA Numbers and Maintaining Current Information
It is absolutely essential that APRNs who have DPS and DEA numbers, keep their contact
information current with those agencies. Both DPS and DEA mail renewal reminders, but if
those notices go to an old address, it is more likely that the APRN will forget to renew. Failure to
receive the notice is not an excuse for letting the DPS permit or DEA registration lapse.
If an APRN writes prescriptions for controlled substances after either the DPS permit or DEA
registration lapses, then the APRN is committing a criminal act. Prescribing these medications
without proper permits from TX DPS and DEA can result in a criminal conviction. The
convictions range from third degree felony to a state jail felony (up to 25 years). They can also
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79
be accompanied by a fine of up to $100,000.liii In addition, the APRN would also be in violation
of the Nursing Practice Act because the APRN is not conforming to all state and federal laws.
Unlike the DEA registration that only needs to be renewed once every 3 years, the DPS permit
must be renewed annually. Just because the APRN has a valid DEA number does not permit
the APRN to prescribe controlled substances unless the APRN also has a valid DPS number.
DPS Change of Information Form
If the APRN changes practice sites, and/or delegating physicians, the APRN must complete and
submit Form MODPAAPRN to the DPS.38 This is the form an APRN completes to report a
change in business address and/or delegating physician/s.
DPS Permit Renewal
A renewal application is mailed to the registered location 60 days prior to the expiration date.
Obviously, if the APRN changed practices and did not update that information with the DPS, the
form will be mailed to the wrong address. Just as with your nursing license, not receiving the
renewal notice is not a valid excuse for failing to renew. If you do not receive the renewal
application, contact TxDPS by phoning 512-424-2188 or by e-mailing [email protected].
DEA Change of Information
DEA also requires registrants to inform the DEA of a change in your status. This includes
changes in name, address, or the schedules the APRN may prescribe. Registration change
request forms can be downloaded from the DEA website.
DEA Registration Renewal
Renewal applications are mailed automatically to the registered location 60 days prior to the
expiration date. APRNs may renew their DEA registration online.39
Re-Activating a Lapsed DEA Registration
Because the ability to order controlled substances varies from state to state, it is not uncommon
for APRNs to have had a DEA number in one state, but let it lapse because the APRN moved to
a state that did not have prescriptive authority for controlled substances.
APRNs that are not certain of the status of their DEA registration may call 800-882-9539 to find
if the number is only expired, or if the number has been retired. If the number is expired, ask the
registration technician to send a renewal application or complete a renewal application online. If
your DEA number has been retired, then complete a new DEA application form just like other
new applicants. In either case, DEA will send a new DEA certificate.
4.5 Overview of APRN Prescriptive Authority in Texas
There are two primary limitations on prescriptive authority for APRNs in Texas. Prescriptive
authority must be 1) delegated by a physician, and 2) physicians can only delegate prescriptive
authority at certain types of practice sites.
Sites that Qualify for Delegation of Prescriptive Authority
There are four designations for sites where physicians may delegate prescriptive authority to
APRNs or PAs. However, the physician supervisory requirements for the two types of facilityliii
Jolene Zych. (personal communication, May 13, 2005).
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80
based practice are different so, for purposes of this section only, those sites will be treated as
separate sites.
1. Medically underserved populations
2. Physician's primary practice
3. Alternate practice
4. Facility-based hospital practice & Facility-based long term care practice
In all these sites there are certain core supervision and documentation requirements to which
the APRN and delegating physician must adhere.
1. Develop protocols that are reviewed, signed and dated annually
2. Designate and maintain a quality assurance process
3. Consult, refer and assist with emergencies (The APRN must consult, refer and advise the
physician of emergencies and the physician must be available to consult, accept referrals and
assist with emergencies.)
4. Keep a log of dates an alternate physician assumes supervision in place of the delegating
physician
5. Keep a permanent record of the supervisory activities of the delegating physician in any site
in which the physician is not onsite the majority of the time (often referred to as a log).
6. Report the name of the APN or PA to whom the physician delegates prescriptive authority to
the TMB and maintain a permanent record of the protocols the physician signs to delegate
prescriptive authority and the dates of the initial delegation, annual review of protocols, and
termination of delegation.
Beyond these core requirements, each site differs in the qualifying criteria and the delegating
physician's supervisory duties.
Medically Underserved Sites (Sites Serving a Medically Underserved Population)
A number of sites can qualify as medically underserved in both rural and urban areas. Some of
these include federally designated rural health clinics, clinics in census tracks designated as a
Medically Underserved Area (MUA) or a Health Professional Shortage Area (HPSA), and a
public health or family planning clinic. For much more detail on determining if a site qualifies
under the medically underserved designation, see Section 4.7.
In a clinic designated as medically underserved, there is no limitation on the number of
APRNs to whom one physician may delegate prescriptive authority. However, the
physician is limited to delegating prescriptive authority at no more than 3 medically underserved
sites that have combined operating hours of 150/week. The physician must be onsite once
every 10 business days the APRN is onsite, and a log must be kept of the physician's activities
while onsite. At a minimum, the physician must perform a review of 10% of patients’ charts and
receive a daily report by telephone regarding any complications or problems not covered under
the protocol.
Physician's Primary Practice Sites
A physician's primary practice site has one unifying concept. The APRN is seeing the
physician's patients (or, in the case of APRNs who have their own panel of patients, patients the
physician has the potential to see). The APRN may see these patients at a site where the
physician spends the majority of time, such as a hospital, a long-term care facility, an adult
daycare facility, the patient's residence and/or, at one alternate site. A school-based clinic also
qualifies under the physician's primary practice site designation.
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A physician delegating prescriptive authority in a primary practice site may only delegate to a
total of four APRNs or PAs or their full-time equivalents (FTEs) and the number must include
any APRNs or PAs to whom the physician delegates at the alternate site. Other than the
requirement for delegation protocols, a quality assurance process, and the physician availability
by phone that apply to all practice sites, there are no specific physician supervisory
requirements.
Based on SB 532, the physician who spends at least 50% of the time on site with the APRN
may also delegate at a charity care site or in a declared disaster or emergency. The delegation
should be included in the Practice Agreement Protocol. The physician delegating at these
additional sites has no additional supervisory requirements.
Alternate Sites
A physician may also delegate prescriptive authority to APRNs and/or PAs in one alternate site
where the physician spends 10% of the time with the APRN and/or PA on a monthly basis. The
physician is limited to delegating prescriptive authority to no more than 4 APRNs and/or PAs at
primary practice and alternate sites. The alternate site must be within 60 miles of the primary
practice and must offer the same type of health care services as in the primary site. The
physician 20% on-site time must be when the APRN is also on site. The physician must review
10% of charts and be available as needed by phone.
Facility-Based Sites
Facility-based practices occur in two inpatient settings: licensed hospitals and long-term care
facilities. In these practices, the APRN is limited to caring for patients the APRN or the
delegating physician admits unless the patient’s physician consents for the APRN to participate
in care. This consent can be general in nature or specific to a particular patient or patients
admitted to specific units.
In other aspects, the law differs between facility-based practices in hospitals and long-term care
facilities.
Facility-Based Hospital Practices
In hospitals, prescriptive authority may be delegated by the medical director, chief of medical
staff, chair of the facility's credentialing committee, department chair, or by a physician who
consents to a request from the medical director or chief of medical staff to delegate prescriptive
authority to an APRN that practices in that facility. There is no limitation on the number of
APRNs or PAs to whom one physician may delegate prescriptive authority in a hospital facilitybased practice, but the physician may only delegate to APRNs or PAs in one hospital.
Facility-Based Long Term Care Practices
In a long-term care facility-based practice, only the medical director may delegate prescriptive
authority. The medical director may delegate prescriptive authority in a maximum of two longterm care facilities and to a maximum of three APRNs and PAs combined (FTEs).
Options in Long-Term Care Facilities
APRNs seeing patients in long-term care facilities have two options as a site designation: a
physician's primary practice site or a facility-based site. Most physicians and APRNs select the
primary practice site because the APRN is seeing the delegating physician's patients. Because
of the way the law is written, the physician does not have to be onsite with the APRN at the
long-term care facility the majority of the time (or any amount of time). If the APRN is seeing
several physicians' patients in a nursing home, each physician may delegate prescriptive
authority to that APRN. Note that even with the primary practice site designation, the APRN is
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82
often required to keep a log of the physician's consultation and supervisory activities because
the physician is not onsite the majority of the time.
The Site to Select if Qualifying Under More Than One Designation
It is not unusual that one practice site qualifies under more than one type of designation. In that
case, it is usually recommended to select the type of site designation that carries the fewest
paperwork and supervisory requirements.
4.6 Limits on Prescriptive Authority for APRNs
As stated in the previous section, the primary limitation on prescriptive authority in Texas is the
fact that it is delegated and site-based. In other words, an APRN may write and sign a
prescription for dangerous drugs and Controlled Substances, Schedules III - V, if and only if, the
APRN is practicing in a site in which a physician has the authority to delegate prescriptive
authority. The physician must document the delegated authority in the protocol. The provisions
relating to a physician's authority to delegate prescriptive authority are included in the Medical
Practice Act, §§157.051 - 157.057, Texas Occupations Code, and by the Texas Medical Board
in its Rules, 193.2 and 193.6.
The physician may place any limitations he/she desires in delegating prescriptive authority. In
addition, the law imposes several limitations on physicians delegating prescriptive authority for
controlled substances. These limitations are delineated in the Medical Practice Act, §157.0511,
TMB Rule 193.6 (n)(2), and BON Rule 222.6, The APRN may not write a prescription for a
controlled substance that:
1. permits greater than a 90 day supply;
2. authorize refills beyond an initial 90-days without prior consultation with the physician;
and
3. is written for a child under the age of 2 without prior consultation with the physician.
As permitted by SB 532, APNs may now permit the pharmacist to dispense a quantity equal to a
90-day supply or prescribe a smaller quantity and permit refills, as long as the total number of
refills would not allow the patient greater than a 90-day supply. For example, the APRN could
prescribe a 30-day supply with two refills. The APRN may authorize refilling a controlled
substance beyond each 90-day supply only after consultation with the physician. Consultation
on refills and controlled substances for children under 2 years of age must be documented in
the chart.
As described in Section 4.3, the Board of Nursing specifies the qualifications an APRN must
meet to receive a prescriptive authority number, the process for issuing the prescriptive
authority number, and the conditions under which an APRN may prescribe drugs. This
information is in BON Rule 222. While the BON permits APRNs with provisional or full
authorization and a prescriptive authority number to prescribe dangerous drugs, only those with
full authorization/licensure and a prescriptive authority number may prescribe controlled
substances. Since the BON repealed BON Rule 222.5, therefore eliminating provisional
authorization, new graduates will no longer be able to prescribe drugs and medical devices until
they have an APRN license. This change affects graduates applying for APRN licensure after
March 2009.
The site-based limitations are specified in BON Rules 222.7 - 222.10 and TMB Rule 193.6. The
rules and a detailed explanation of each practice site follows.
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83
4.7 Specific Information on Sites in Which APRNs Prescribe
This section contains details and agency rules for each type of practice site. At the time of
publication, both the TMB and BON are in the process of amending their rules to implement
changes created by SB 532, the retail clinics bill that passed in 2009. For clarity, the author is
providing the text of draft rules that have not yet been adopted by the agencies at the time the
third edition was published. However, it is expected that the text provided will closely
approximate the final version. In all cases, a link to the current version of the rule is provided.
Underlining and strikethrough marks indicate that a rule is a new draft and was not adopted at
the time of publication. Underling in a rule indicates language is being added and stricken words
are being deleted.
While some of the information in this section has already been explained in Section 4.5, APRNs
who work in each type of site need to know all the regulations that apply to that site. BON rules
state that a nurse is responsible for all laws and rules that are applicable to the RN's practice.
Therefore, the APRN who prescribes must be equally familiar with applicable TMB rules. If one
agency’s rule is more restrictive than the other, then the APRN must comply with the more
restrictive rule.
The Medical Practice Act (§§157.052 - 157.0541, Texas Occupations Code) designates four
sites where physicians may delegate prescriptive authority to APRNs. Those practice sites
include a medically underserved site, physician's primary practice, alternate practice sites and
facility-based practices. The Medical Board interprets the alternate practice site to be an
alternate practice site to the physician’s primary practice.
Both the physician and APRN are responsible to ensure that all the following
documentation and physician review is in place.
1. The APRN and delegating physician must develop protocols and review, sign and date
the protocols annually or more often, if needed.
2. The APRN and physician must establish a written quality assurance plan for patients
seen by the APRN; then conduct and document the quality assurance activities as
specified and conduct some type of quality assurance for patients seen by the APRN.
3. The physician must be available when off-site for consultation, referral and assistance
with emergencies,
4. .In all sites in which the physician is not onsite the majority of the time, the APRN must
keep a permanent record of consultation and supervisory activities.
Beyond this, each site differs in the qualifying criteria and the delegating physician's supervisory
duties. Those are discussed below according to the type of site.
Medically Underserved Sites: What Sites Qualify?
A number of sites in both rural and urban areas can qualify as medically underserved. Anyone
eligible for a federal, state or local program is considered to be a medically underserved person.
Therefore, a geriatric practice can qualify as a site serving a medically underserved population
because most clients are Medicare eligible. Other examples that qualify as medically
underserved sites include the following.
 federally designated Rural Health Clinics (RHC) and Federally Qualified Health
Centers (FQHC)
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 any practice in counties or census tracks designated as a Medically Underserved
Area (MUA) or a Health Professional Shortage Area (HPSA)
 a public health, family planning (such as Planned Parenthood), or other clinic
designated by the Department of State Health Services (DSHS) Texas Primary Care
Office as serving a Medically Underserved Population (MUP)
How do you know if you are in one of these sites? Refer to the Health Professions Resource
Center websiteliv, or the federal government's shortage designation websitelv. If you still have
questions, call the Texas Primary Care Office at (512) 458-7518. In addition, the Department of
State Health Services (DSHS) has the authority to designate certain practice sites as serving a
Medically Underserved Population (MUP).
DSHS May Designate a Site Serves a Medically Underserved Population
If the practice is not located in a federally designated underserved site, the Texas Department of
State Health Services establishes the criteria for designating sites that serve medically
underserved populations and the application to request this designation.lvi Clinics or
practitioners wishing to have their sites designated as a "site serving medically underserved
populations" complete a MUP Application for Designation available on the Health Professions
Resource Center’s MUA and MUP webpage.lvii
Physician Supervision at a Medically Underserved Site
Many clinics want to be designated as a medically underserved site because the physician only
has to be on site once every 10 business days the APRN is on site. That means that if an APRN
is only on site 1 day a week, the physician would only have to visit the clinic once every 10
weeks. However, many of the other supervisory requirements in medically underserved sites
are more restrictive than in other types of sites. The visit has to occur during normal business
hours while the APRN is onsite, and the requirements for supervision the TMB Rules are quite
specific.
The Medical Board Rule on medically underserved sites, 22 TAC §193.6 (b), is very similar to
the corresponding section of the Medical Practice Act, §157.052. In a clinic designated as
medically underserved, there is no limit on the number of APRNs or PAs to whom one
physician may delegate prescriptive authority. However one physician cannot delegate
prescriptive authority to APRNs at more than three medically underserved clinics unless granted
a waiver from the TMB. In addition to reviewing and signing protocols and site visits once every
10 business days, a log must be kept of the physician's activities while on-site. At a minimum,
the physician must review and co-sign 10% of patient's charts while on site and receive a daily
report by telephone on patients who had problems that were not covered by protocol. The
physician should also provide other services as outlined in medical board rules.
Rules and Statute on Medically Underserved Sites
Any APRN prescribing in a site based on being medically underserved must be very familiar
with the applicable rules from the nursing and medical boards. The boards create the rules to be
consistent with each other, but obviously, the BON rules focus on what the APRN must do and
liv
Health Professions Resource Center. Aeccessed: http://www.dshs.state.tx.us/chs/hprc.
HRSA. Shortage designation information. Accessed: http://bhpr.hrsa.gov/shortage .
lvi
DSHS. Criteria for designating MUP sites is in 25 TAC §13.33. The application process is in 22 TAC
§13.34.
lvii
DSHS. Medically Underserved Areas and Populations. Accessed: www.dshs.state.tx.us/CHS/HPRC/mua.shtm.
lv
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TMB rules focus on the delegating physician. Because all these limitations and requirements
are in the Medical Practice Act, the TMB Rules are the most specific.
Prescribing at Sites Serving Certain Medically Underserved Populations
22 TAC §222.7 (Board of Nursing Rules)
When carrying out or signing prescription drug orders at a site serving a medically
underserved population, the advanced practice registered nurse shall:
(1) maintain protocols or other written authorization that must be reviewed and
signed by both the advanced practice registered nurse and the delegating physician at
least annually;
(2) have access to the delegating physician or alternate delegating physician for
consultation, assistance with medical emergencies, or patient referral;
(3) provide a daily status report to the physician on any problems or
complications encountered that are not covered by protocol; and
(4) shall be available during on-site visits by the physician which shall occur at
least every 10 business days that the advanced practice registered nurse is on site
providing care.
Delegation of Prescriptive Authority at Site Serving Underserved Populations
22 TAC §193.2(b) (Medical Board Rules)
(2) Physician supervision at a site serving medically underserved populations.
Physician supervision of a physician assistant or an advanced practice nurse at a site
serving a medically underserved population will be adequate if a delegating physician:
(A) receives a daily status report to be conveyed in person, by telephone,
or by radio from the advanced practice nurse or physician assistant on any
complications or problems encountered that are not covered by a protocol;
(B) visits the clinic in person at least once every ten business days during
regular business hours during which the advanced practice nurse or physician assistant
is on site providing care, in order to observe and provide medical direction and
consultation to include, but not be limited to:
(i) reviewing with the physician assistant or advanced practice
nurse the case histories of patients with problems or complications encountered;
(ii) personally diagnosing or treating patients requiring physician
follow-up; and
(iii) verifying that patient care is provided by the clinic in
accordance with a written quality assurance plan on file at the clinic, which includes a
random review and countersignature of at least 10% of the patient charts by the
physician;
(C) is available by telephone or direct telecommunication for consultation,
assistance with medical emergencies, or patient referrals; and
(D) is responsible for the formulation or approval of such physician's
orders, standing medical orders, standing delegation orders, or other orders or protocols
and periodically reviews such orders and the services provided to patients under such
orders.
(3) Supervision of clinics. A physician may not supervise more than three clinics
serving medically underserved populations without approval of the board. A physician
may not supervise any number of clinics with combined regular business hours
exceeding 150 concurrent hours per week without approval of the board.
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86
Advertising for Sites Serving Medically Underserved Populations
Those responsible for advertising medically underserved sites should also be aware of the
following provision in the Medical Practice Act.
§157.052 (d), Texas Occupations Code
(d) An advertisement for a site serving a medically underserved population must include
the name and business address of the supervising physician for the site.
Physician's Primary Practice
A physician's primary practice site has one unifying concept; the APRN is seeing the physician's
patients. The APRN may see these patients at a site where the physician spends the majority of
time, or at a hospital, a long-term care facility, an adult daycare facility, the patient's residence
and/or at one alternate site. In addition, a school-based clinic also qualifies under the
physician's primary practice site designation.
The APRN's Responsibilities in a Primary Practice
The Board of Nursing's Rule 222.8 specifies what the APRN who prescribes at a primary
practice site must do. The APRN prescribing in this type of site must be equally familiar with the
TMB rules and ensure that the practice conforms to those rules.
22 TAC §222.8 (BON Rule) [NOTE: The citation is linked to current BON rules. Below is text of draft
rules planned for adoption at the January 2010 BON meeting. Underlining indicates new language.]
When carrying out or signing prescription drug orders at a physician's primary practice
site, the advanced practice registered nurse shall:
(1) maintain Protocols or other written authorization that must be reviewed and signed by
both the advanced practice registered nurse and the delegating physician at least
annually;
(2) sign or co-sign prescription drug orders only for those patients with whom the
physician has established or will establish a physician-patient relationship although the
physician is not required to see the patient within a specified time period.
Adequate Physician Supervision at a Primary Practice Site
According to 22 TAC §193.6(c), a physician delegating prescriptive authority in one or more
primary practice settings, including an alternate site, may only delegate to a total of four APRNs
or PAs, or their full-time equivalents (FTEs). Other than the requirement for a practice
agreement protocol and the other requirements that apply to all practice sites (outlined in
section 4.5), there are no specific physician supervisory requirements in primary practice sites.
22 TAC §193.6 (c) [NOTE: The citation is linked to current TMB rules. Below is text of Medical Board
Draft Rules planned for adoption at the TMB meeting November 5-6, 2009. Underlining indicates new
language to be added subsequent to SB 532 and stricken words are old language that will be deleted.]
(c) Delegation of prescriptive authority at primary practice site.
(1) "Primary practice site" means:
(A) the practice location where the physician spends the majority of the
physician's time;
(B) a licensed hospital, long-term care facility, or adult care center where
both the physician and the physician assistant or advanced practice nurse are
authorized to practice;
(C) a clinic operated by or for the benefit of a public school district for the
purpose of providing care to the students of that district and the siblings of those
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87
students, if consent to treatment at that clinic is obtained in a manner that complies with
the Family Code, Chapter 32;
(D) an established patient's residence; [or]
(E) where the physician is physically present with the physician assistant
or advanced practice nurse, or
(F) a location where a physician assistant or advanced practice nurse
who practices on-site with the physician more than 50 percent of the time and provides:
(i) health care services for established patients;
(ii) without remuneration, voluntary charity health care services at
a clinic run or sponsored by a nonprofit organization; or
(iii) without remuneration, voluntary health care services during a
declared emergency or disaster at a temporary facility operated or sponsored by a
governmental entity or nonprofit organization and established to serve persons in Texas.
(2) Acts that may be delegated. At a physician's primary practice site, a licensed
physician authorized by the board may delegate to a physician assistant or an advanced
practice nurse acting under adequate physician supervision the act or acts of
administering, providing, carrying out or signing a prescription drug order as authorized
through physician's orders, standing medical orders, standing delegation orders, or other
orders or protocols as defined by the board. Providing and carrying out or signing a
prescription drug order under this subdivision is limited to dangerous drugs and
controlled substances Schedules III - V as provided in subsection (n) of this section, and
shall comply with other applicable laws.
(3) Physician supervision. Physician supervision of the carrying out and signing
of prescription drug orders shall conform to what a reasonable, prudent physician would
find consistent with sound medical judgment but may vary with the education and
experience of the advanced practice nurse or physician assistant. A physician shall
provide continuous supervision, but the constant physical presence of the physician is
not required.
(4) Additional limitations. A physician's authority to delegate the carrying out or
signing of a prescription drug order under this subsection is limited to:
(A) four[three] physician assistants or advanced practice nurses or their
full-time equivalents practicing at the physician's primary or alternate practice site,
unless a waiver is granted under subsection (i) of this section; and
(B) the patients with whom the physician has established or will establish
a physician-patient relationship, but this shall not be construed as requiring the physician
to see the patient within a specific period of time.
As specified in subdivision (F) above, SB 532 added three additional settings where physicians
may delegate prescriptive authority if the physician already spends 50% of the time with the
APN at the primary practice site. It is important to note that the additional location described in
(F)(i) where APRNs can prescribe for established patients means that APRNs will not be able to
see new patients in this location. In all three settings, the physician is not required to provide
any addtioal supervision to that already provided in the primary practice site.
Alternate Practice Site
The Texas Medical Board considers an alternate practice site to be an extension of the
physician's primary practice site, and the physician must spend a minimum of 10% of the time
onsite with the APRN in order to qualify for this designation. (SB 532 reduced physician on-site
time from 20% to 10%.)
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The APRN's Responsibilities in an Alternate Site
The BON's Rule 222.9 specifies requirements for APRNs who prescribe at alternate sites.
However, as in all other practice sites the APRN is responsible for knowing and being sure that
the site and physician supervisory requirements for physicians are also met.
BON §222.9 (BON Rule) [NOTE: The citation is linked to current BON rules. Below is text of draft rules
planned for adoption at the January 2010 BON meeting. Underlining indicates new language to be added
subsequent to SB 532 and stricken words are old language that will be deleted.]
When carrying out or signing prescription drug orders at an alternate site, the advanced
practice registered nurse shall:
(1) maintain Protocols or other written authorization that must be reviewed and
signed by both the advanced practice registered nurse and the delegating physician at
least annually;
(2) be on-site with the physician at least twenty ten percent of the time hours of
operation of the site each month that the advanced practice registered nurse is acting with
delegated prescriptive authority; and
(3) have access to the delegating physician through direct telecommunication for
consultation, patient referral, or assistance with a medical emergency.
Site and Physician Supervisory Requirements at Alternate Sites
As of September 1, 2009, consistent with SB 532, the alternate sites must reside within 75 miles
of the physician’s primary practice or residence, and the physician must be on site 10% of the
time that the APRN is on site on a monthly basis.
This means physicians will no longer have to be at alternate sites on a weekly basis. While the
physician may choose to be on site at any time, the physician only must be on site with the
APRN monthly. The physician must still be available as needed by phone and review 10% of
charts but that chart review may occur off-site. Based upon 22 TAC §193.6 (f), a log must be
kept detailing the physician's patient care activities when the physician is not on-site, and the
dates and times when the physician is on-site. The following is the text of this TMB Rule
22 TAC §193.6 (d) (Medical Board Rules) [NOTE: The citation is linked to current TMB rules. Below
is text of Medical Board Draft Rules planned for adoption at the TMB meeting November 5-6, 2009.
Underlining indicates new language to be added subsequent to SB 532 and stricken words are old
language that will be deleted.]
(d) Delegation of prescriptive authority at a physician's alternate practice site.
(1) "Alternate practice site" means a site:
(A) where services similar to the services provided at the delegating
physician's primary practice site are provided; and
(B) located within 75 [60] miles of the delegating physician's residence or
primary practice site.
(2) Acts that may be delegated. At a physician's alternate practice site, a licensed
physician authorized by the board may delegate to a physician assistant or an advanced
practice nurse acting under adequate physician supervision the act or acts of
administering, providing, carrying out or signing a prescription drug order as authorized
through physician's orders, standing medical orders, standing delegation orders, or other
orders or protocols as defined by the board. Providing, carrying out or signing a
prescription drug order under this subsection is limited to dangerous drugs and
controlled substances Schedules III - V as provided in subsection (n) of this section, and
shall comply with other applicable laws.
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(3) Physician supervision is adequate for the purposes of this subsection if the
delegating physician:
(A) is on-site with the advanced practice nurse or physician assistant at
least 10 [20] percent of the hours of operation of the site each month that the physician
assistant or advanced practice nurse is acting with delegated prescriptive authority and
is available while on-site to see, diagnose, treat, and provide care to those patients for
services provided to or to be provided by the physician assistant or advanced practice
nurse to whom the physician has delegated prescriptive authority [time];
(B) randomly reviews at least 10 percent of the medical charts, including
through electronic review of the charts from a remote location, of patients seen by a
physician assistant or advanced practice nurse at the site; [and]
(C) is available through direct telecommunication for consultation, patient
referral, or assistance with a medical emergency ; and
(D) is not prohibited by contract from seeing, diagnosing, or treating a
patient for services provided or to be provided by the physician assistant or advanced
practice nurse under delegated prescriptive authority .
(4) A physician may not delegate to a combined number of more than four [three]
physician assistants or advanced practice nurses or their full-time equivalents at the
physician's primary and alternate practice sites, unless a waiver is granted under
subsection (i) of this section.
Facility-Based Sites
Facility-based practices occur in two inpatient settings, licensed hospitals and long-term care
facilities. In all these practices, the APRN cares for patients admitted by the delegating
physician. The APRN may only care for other physicians' patients with prior consent of those
physicians.
The APRN's Responsibilities in a Facility-Based Site
While the BON rules in facility-based practices only refer to writing prescriptions, APRNs should
also use the rules for guidance in ordering drugs and devices in hospitals. Even if APRNs never
write prescriptions when a patient is discharged, all APRNs except CRNAs, should have
practice protocols in place to order drugs and initiate other aspects of medical care.
22 TAC §222.10 (BON Rule) [NOTE: The citation is linked to current BON rules. Below is text of draft
rules planned for adoption at the January 2010 BON meeting. Underlining indicates new language.]
When carrying out or signing prescription drug orders at a facility-based practice site, the
advanced practice registered nurse shall:
(1) maintain Protocols or other written authorization developed in accordance with facility
medical staff policies and reviewing the authorizing documents with the appropriate
medical staff at least annually
(2) sign or co-sign prescription drug orders in the facility in which the delegating
physician is the medical director, the chief of medical staff, the chair of the credentialing
committee, or a department chair; or a physician who consents to the request of the
medical director or chief of the medical staff to delegate
(3) sign or co-sign prescription drug orders for the care or treatment of only those
patients for whom physicians have given their prior consent.
Adequate Physician Supervision at a Facility-Based Practice Site
There are distinct differences between facility-based practices in hospitals and those in longterm care facilities. SB 532 only changed one thing related to facility-based practices. In long
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90
term care facilities, the number of APRNs to whom one physician may delegate prescriptive
authority increases from three to four. There is still no limit on the number of APRNs to whom
one physician may delegate prescriptive authority in hospital facility-based practices.
22 TAC §193.6 (e) (Medical Board Rules) [NOTE: The citation is linked to current TMB rules. Below
is text of Medical Board Draft Rules planned for adoption at the TMB meeting November 5-6, 2009.
Underlining indicates new language to be added subsequent to SB 532 and stricken words are old
language that will be deleted.]
(2) Limitations on authority to delegate. A physician's authority to delegate under this
subsection is limited as follows:
(A) the delegation is pursuant to a physician's order, standing medical order,
standing delegation order, or other order or protocol developed in accordance with
policies approved by the facility's medical staff or a committee thereof as provided
in facility bylaws;
(B) the delegation occurs in the facility in which the physician is the medical
director, the chief of medical staff, the chair of the credentialing committee, or a
department chair;
(C) the delegation does not permit the carrying out or signing of prescription drug
orders for the care or treatment of the patients of any other physician without the
prior consent of that physician;
(D) delegation in a long-term care facility must be by the medical director and the
medical director is limited to delegating the carrying out and signing of prescription
drug orders to no more than four [three] advanced practice nurses or physician
assistants or their full-time equivalents; and
(E) under this section, a physician may not delegate at more than one licensed
hospital or more than two long-term care facilities unless approved by the board.
(3) Physician supervision. Physician supervision of the carrying out and signing of a
prescription drug order shall conform to what a reasonable, prudent physician would find
consistent with sound medical judgment but may vary with the education and experience
of the advanced practice nurse or physician assistant. A physician shall provide
continuous supervision, but the constant physical presence of the physician is not
required.
Hospital Facility-Based Site
In hospitals, prescriptive authority may be delegated by the medical director, chief of medical
staff, chair of the facility's credentialing committee, or department chair. The statute on facilitybased practice also allows any physician who consents to a request from the medical director or
chief of medical staff to delegate prescriptive authority to an APRN that practices in that facility.
CNAP is requesting that TMA change the rule to be consistent with the statute. However, even
without the rule change, the statute controls and it would not be illegal for other physicians, as
described in §157.054(a)(1)-(4), to delegate prescriptive authority in a hospital. If a physician,
other than those in positions specified under the statute need to delegate prescriptive authority,
they could seek a waiver from the TMB to do so or delegate prescriptive authority under the
primary practice site provisions.
Supervision of prescriptive authority in hospitals is largely left to the medical staff in each
hospital to determine. BON and TMB rules specify no limitation on the number of APRNs or
PAs to whom one physician may delegate prescriptive authority in a hospital facility-based
practice, but the physician may only delegate to APRNs or PAs in one hospital. For more
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information on working in hospital settings, refer to the credentialing section in this manual, and
to CNAP's manual entitled Credentialing NPs and CNSs in Texas Hospitals.
Long-Term Care Facility-Based Site
In a long-term care facility-based practice, only the medical director may delegate prescriptive
authority. The medical director may delegate prescriptive authority in a maximum of two longterm care facilities and to a maximum of four APRNs and PAs (FTEs).
Just like in hospitals, the specific supervision is largely determined by the individual physician
who is held to the standard of a "careful and prudent physician," and by the medical staff bylaws
in the facility. In addition, the supervisory requirements for all sites apply.
Requirements that Apply to All Practice Sites
The APRN must remember that, in addition to the specific practice site requirements, the APRN
and physician must meet the requirements that apply to all practice sites. Therefore, the
following information bears repeating.

APRNs must confirm the delegating physician and any alternate physicians hold a valid and
unrestricted Texas Medical License.lviii

APRNs and delegating physicians must develop protocols and review, sign, and date the
protocols at least annually.

Physicians must be available when off-site for consultation, referral, and assistance with
emergencies, and

Physicians must conduct some type of quality assurance for patients seen by the APRN.

Physicians must keep a permanent record of the APRNs to whom the physician delegates
prescriptive authority, the dates the physician originally signed the protocols, each annual
review, and the date the delegation terminated. In addition, subsequent to SB 532, on or after
January 31, 2010, the physician must register the name and license numbers of the APRNs and
PAs to whom the physician delegates prescriptive authority.

Physicians must arrange for one or more alternate physicians to assume supervisory duties
in the delegating physician's absence.

In all sites in which the physician is not onsite the majority of the time, the APRN must keep a
permanent record of consultation and supervisory activities and the physician should sign those
logs when on-site.
Some of these requirements are specified in the following TMB Rule.
Documentation of Supervision
22 TAC § 193.6 (f) (Medical Board Rules) [NOTE: The citation is linked to current TMB rules. Below
is text of Medical Board Draft Rules planned for adoption at the TMB meeting November 5-6, 2009.
Underlining indicates new language to be added subsequent to SB 532.]
(1) A physician shall document any delegation of prescriptive authority to a physician
assistant or advanced practice nurse by a protocol, as defined in this section. The
physician shall also maintain a permanent record of all protocols the physician has
lviii
TMB. Online Verification of Texas Medical Licenses. Accessed:
http://reg.tsbme.state.tx.us/OnLineVerif/Phys_NoticeVerif.asp?
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signed, showing to whom the delegation was made and the dates of the original
delegation, each annual review, and termination.
(2) If the physician assistant or advanced practice nurse is located at a site other than
the site where the physician spends the majority of the physician's time, physician
supervision shall be further documented by a permanent record showing the names or
identification numbers of patients discussed during the daily status reports, the times
when the physician is on site, and a summary of what the physician did while on site.
The summary shall include a description of the quality assurance activities conducted
and the names of any patients seen or whose case histories were reviewed with the
physician assistant or advanced practice nurse. The supervising physician shall sign the
documentation at the conclusion of each site visit. Documentation is not required if the
physician assistant or advanced practice registered nurse is permanently located with
the physician at a site where the physician spends the majority of the physician's time.
(3) Physicians that delegate the carrying out or signing of a prescription drug order must
register with the board the name and license number of the physician assistant or
advanced practice nurse to whom the delegation is made.
The delegating physician's obligation to arrange alternate supervision is set forth in the TMB
Rules on alternate physicians. This requirement is discussed in more detail in the following
section.
4.8 Alternate Delegating Physicians
Physicians are required to arrange for alternate physicians who are willing to assume the duties
of the delegating physician when the delegating physician is unable to fulfill those
responsibilities. Typically, this will be one or more partners in the physician's practice, but there
are no rules or policies that limit the physicians who may serve as an alternate. Alternate
physicians must review the practice protocols and indicate that review by signing the protocols.
The alternate physician must also include the date on which the physician signed the protocols.
In addition, TMB Rules require that the alternate physician sign a form each time an alternate
assumes supervisory responsibility. This does not mean that the alternate physician must sign
the form each time the APRN consults with an alternate. This is only required when the
delegating physician is out of town or unavailable for a day or longer. A sample form for
alternate physicians is included in the sample practice protocol at the end of this chapter.
TMB Rules also require that the APRN verifies that the alternate physician has an unrestricted
and active license to practice medicine in the state of Texas. This information can be verified on
the TMB website.lix The TMB Rules on alternate physicians follow.
Alternate physicians
22 TAC 193.6 (g) (Medical Board Rules)
(g) If a delegating physician will be unavailable to supervise the physician assistant or
advanced practice registered nurse as required by this section, arrangements shall be
made for another physician to provide that supervision. The alternate (substitute)
physician providing that supervision shall affirm in writing and document through a
permanent record where the physician assistant or advanced practice nurse is located
lix
TMB verification for physicians licensed in Texas. Accessed at
http://reg.tsbme.state.tx.us/OnLineVerif/Phys_NoticeVerif.asp?.
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that he or she is familiar with the protocols or standing delegation orders in use and is
accountable for adequately supervising prescriptive delegation provided pursuant to
those protocols or standing delegation orders. The permanent record shall be kept with
the protocols or standing orders. The permanent record shall contain dates of the
alternate physician supervision and be signed by the alternate physician acknowledging
this responsibility. The physician assistant or advanced practice nurse is responsible for
verifying that the alternate physician is a licensed Texas physician holding an
unrestricted and active license.
4.9 Not All Sites Have a Physician Delegation Ratio
As specified above, there is a limit in some sites on the number of APRNs and PAs to whom
one physician may delegate prescriptive authority. However, there is no limit on the number
of physicians who may delegate prescriptive authority to one APRN, or the number of
sites in which an APRN can have prescriptive privileges. The limits are on the number of
APRNs and PAs to whom one physician may delegate prescriptive authority in primary practice,
alternate and long-term care facility-based sites. As of September 1, 2009, that number is four
full time equivalent (FTE) APRNs and/or PAs unless the practice qualifies for a TMB waiver.
Under a TMB waiver the number may increase to six FTEs if the services offered at that
practice site are of limited scope and duration. There is no limit in a medically underserved
site or in a facility-based practice site in a hospital on the number of APRNs to whom one
physician may delegate prescriptive authority.
4.10 The Responsibilities of APRNs with Prescriptive Authority
Regardless of the site in which APRNs have prescriptive authority, the APRN has to know his or
her limitations and basic responsibilities. Therefore, those responsibilities are summarized.
1. APRNs in Texas can only prescribe dangerous drugs and Controlled Substances, Schedules
III – V as delegated by a physician through a delegation protocol/practice agreement. In
addition, APRNs can only prescribe for patients that fall within their scope of practice and at
designated sites.
2. The APRN is responsible for following BON rules on prescriptive authority (BON Rules and
Regulations §222) and all other applicable state laws and rules, such as those in the Medical
Board Statutes (See §157.051- 157.056 and §157.060, Texas Occupations Code) and
Medical Board Rules (22 TAC §193.6 and applicable definitions in §193.2).
3. The APRN must ensure all necessary logs and records are maintained. While medical board
rules actually require the physician to maintain logs, physicians frequently assign this to the
APRN or are not aware of this requirement at all. The APRN must ensure the alternate
physician signs a form that includes the dates in which the alternate physician assumes
supervisory responsibilities in the absence of the delegating physician. APRNs in sites where
the physician is not on-site the majority of the time must also maintain a log of physician
consultation, dates the physician is onsite, and medical records reviewed and other
supervisory and quality assurance activities.
4. The APRN must ensure the site designation and names of delegating and alternate
physicians are current, and that those physicians have an unrestricted Texas medical
license. Census tracks for MUA and HPSA designations change. If the clinic is no longer in
an MUA or sees fewer medically underserved clients, you must be sure the clinic still
qualifies as a medically underserved site, or change the site designation for your prescriptive
authority.
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5. The APRN must ensure the practice is consistent with applicable Texas laws and agency
rules. If the delegating physician does not meet the minimum supervisory requirements for
the site, stop prescribing in that site until the site receives a TMB waiver or a physician who
will meet the supervisory requirement signs the practice agreement protocols.
6. The APRN is liable for the safety of his or her practice and prescribing practices. If the APRN
cannot get the back-up and consultation time needed with the current delegating physician,
he/she needs to find a new physician. Be sure that adequate quality assurance processes
are maintained at the practice site in accordance with requirements in TMB Rule 193.6 (f)(2).
4.11 Responsibilities of Physicians Delegating Prescriptive Authority
Physicians are rarely familiar with the requirements for delegating prescriptive authority.
Therefore, the APRN must be sure the physician has this information. The following list can be
copied and given to physicians.
1. A physician may only delegate prescriptive authority to an APRN who is practicing at a
qualifying site. Between September 1, 2005, and January 31, 2010, physicians were not
required to submit a Prescriptive Authority Delegation Form to the Texas Medical Board.
Beginning on, or about, January 31, 2010, physicians who delegate prescriptive authority
must register the APRN or PA’s name and license number with the TMB. In addition, the
physician must keep a record of the persons to whom the physician delegates prescriptive
authority, the dates of the delegation and the practice sites in which the APRN practices.
2. Delegating physicians must be familiar with the laws (§157.051 - 157.056 and §157.060,
Occupations Code) and rules (22 TAC §193.6) that pertain to delegating prescriptive
authority. The physician should be particularly familiar with the rules that pertain to the type
of site in which the APRN to whom the physician delegating prescriptive authority is
practicing.
3. The physician must participate in developing the practice agreement protocol by which the
physician delegates all medical aspects of care including making a medical diagnosis and
prescriptive authority. The physician must determine what medical acts he/she will delegate,
e.g., prescriptive authority for dangerous drugs, controlled substances, the categories of
drugs that the APRN may or may not prescribe, and any restrictions on refills and generic
substitution the APRN may prescribe. The physician signs and dates the protocol, ensures it
is updated as necessary, and reviews, signs and dates at least annually.
4. The physician must meet all supervisory requirements for the type of site in which the
physician is delegating prescriptive authority. At a minimum in every type of site, a physician
must be available for consultation and referral and conform to what a reasonable and
prudent physician would find consistent with sound medical judgment based on the
education and experience of the APRN. The physician must conduct quality assurance
reviews for patients seen by the APRN or PA in accordance with a quality assurance plan.
The time a physician must spend at the APRN's practice site varies based on the type of site,
but the constant physical presence of a physician is not required at any site.
5. In sites in which the physician is not present the majority of the time, the physician must sign
a log chronicling consultation with the APRN and any quality assurance and patient care
activities the physician performs while in the APRN's practice site.
6. If the delegating physician is out of town, or otherwise unavailable, the physician ensures an
alternate physician is available to perform any supervision, consultation or referral duties that
might be required in his/her absence.
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7. Ensure that methods of quality assurance are in place and participates in quality assurance
processes as appropriate.
8. As needed, apply for a waiver from the Texas Medical Board of site-based or supervisory
requirements.
4.12 Waivers of Prescriptive Delegation Requirements
All site-based and supervisory requirements are part of the Medical Practice Act. Therefore,
only a physician may apply to the Texas Medical Board to have site-based and or
supervision requirements waived.
The law does not allow the Texas Medical Board (TMB) to waive all site-based and supervision
requirements. It specifically states that all on-site physician visits cannot be waived. However,
the TBM typically will extend the time between those visits to a maximum of once every 90
days. Typically, waivers are only granted when a clear public need exists. However, under
provisions in SB 532, the medical board has additional authority to waive some site-based and
supervisory requirements in sites offering services of limited scope and duration without
requiring applicants to establish a need exits.
While on-site supervision is one of the most common reasons physicians seek a waiver, most
site-based or supervisory requirements can be waived. The following is an example of one sitebased requirement that was waived for an alternate practice site.
A waiver was granted for a physician in a pediatric specialty traveling to a smaller city to see
children in a hospital out-patient clinic because there was no physician with that specialty in that
city. The physician came to the clinic one day a week. Between those on-site visits, a NP would
see patients if needed, renew prescriptions and answer questions for families. The site did not
meet the requirements of a medically underserved site, but the physician did meet the on-site
time requirement for an alternate practice site. However, the site was located more than 60
miles from the primary site (then the distance limitation). The physician requested, and was
granted, a waiver of the 60 mile limitation. Therefore the physician was able to delegate
prescriptive authority to the NP in the remote site.
It is not uncommon for physicians to seek a waiver when none is required. The following is an
example. A physician wanted to delegate prescriptive authority to two APRNs who would see
patients at 7 nursing homes. The physician was the medical director at four of those nursing
homes and sought a waiver to allow her to delegate prescriptive authority at all seven sites. It
was found that the APRNs were only seeing the physician's patients at all seven nursing
homes. Therefore, the physician could delegate prescriptive authority in all the nursing homes
under the designation of a physician’s primary practice. No waiver was required.
The authority to grant waivers was made a permanent part of the Medical Practice Act in 2005.
At that time the advisory committee that originally reviewed waivers was eliminated, and
applications for waivers are reviewed by the TMB's staff and Standing Orders Committee. Then
that committee recommends approval or denial by the full Texas Medical Board. The criteria
and process for obtaining a waiver is outlined in the Medical Practice Act in §157.0542 and are
mirrored in TMB Rule 193.6 (i).
Board Waiver of Delegation Requirements
22 TAC §193.6(i) Waivers (Medical Board Rules) [NOTE: The citation is linked to current TMB
rules. Below is text of Medical Board Draft Rules planned for adoption at the TMB meeting November 5-6,
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2009. Underlining indicates new language to be added subsequent to SB 532 and stricken words are old
language that will be deleted.]
(1) The board may waive or modify any of the site or supervision requirements
for a physician to delegate the carrying out or signing of prescription drug orders to an
advanced practice nurse or physician assistant at facilities serving medically
underserved populations, at physician primary and alternate practice sites, and at
facility-based practice sites.
(2) The board may grant a waiver under paragraph (1) of this subsection if the
board determines that:
(A) the practice site where the physician is seeking to delegate
prescriptive authority is unable to meet the requirements of Chapter 157 of the Act or
this section, or compliance would cause an undue burden without a corresponding
benefit to patient care;
(B) safeguards exist for patient care and for fostering a collaborative
practice between the physician and the advanced practice nurses and physician
assistants; and
(C) if the requirement for which the waiver is sought is the amount of time
the physician is on-site, the frequency and duration of time the physician is on-site when
the advanced practice nurse or physician assistant is present is sufficient for
collaboration to occur, taking into consideration the other ways the physician
collaborates with the advanced practice nurse or physician assistant at other sites.
(3) If the board determines that the types of health care services provided by a
physician assistant or advanced practice nurse at an alternate practice site as described
in subsection (d) are limited in nature and duration and are within the scope of delegated
authority, and that patient health care will not be adversely affect, the board may modify
or waive:
(A) the limitation on the number of physician assistants or advanced
practice nurses, or their full-time equivalents, if the board does not authorize more than
six physician assistants or advanced practice nurses or their full-time equivalents;
(B) the mileage limitation; or
(C) the onsite-supervision requirements, except that the physician must
be available on-site at regular intervals and when on-site must be available to treat
patients.
(4) [(3)] The board may not waive the limitation on the number of primary or
alternate practice sites at which a physician may delegate the carrying out or signing of
prescription drug orders or the number of advanced practice nurses or physician
assistants to whom a physician may delegate the carrying out or signing of prescription
drugs orders, except as provided in subparagraph (3)(A) .
(5)[(4)] Procedure.
(A) A physician may apply for a waiver by submitting a written
request to the licensure division of the board via the agency website, email, or regular
mail. The request shall then be submitted to the board for review.
(B) The Standing Orders Committee of the board shall review
requests for waivers and may recommend to the full board that a waiver be granted,
denied or modified.
(C) The board may grant a waiver only if the board determines
good cause exists to grant a waiver.
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97
(D) The board may approve a waiver with modifications.
(E) If the board denies a waiver, a written explanation for the
denial shall be given to the physician along with any recommended modifications that
would make the waiver application acceptable.
(F) The board may revoke, suspend or modify a waiver previously
granted after providing the physician notice and opportunity for a hearing as provided for
by the Administrative Procedure Act and Chapter 187 of this title (relating to Procedural
Rules).
(6) A modification or waiver granted under this subsection may not
validate or authorize a contract provision that prohibits a physician from seeing,
diagnosing, or treating any patient.
Questions about obtaining a waiver can be directed to the Texas Medical Board. Call (512) 3057030. Physicians may also email questions through the TMB website, www.tmb.state.tx.us. The
TMB maintains a Prescriptive Delegation Waiver Requests webpage on which it posts
applications the board is considering.
It is highly recommended that APRNs and their delegating physicians contact CNAP if they wish
to apply for a waiver. CNAP advises practices on all the alternatives that exist to help APRNs
obtain prescriptive authority. In addition CNAP will edit the waiver application so it has the best
possible chance of being accepted. The Prescriptive Delegation Waiver Request is available on
the TMB Website, but is also included at the end of this chapter.
4.13 Must a Delegating Physician & APRN Have the Same Specialty?
Statutes and rules do not address the specialty of the physician delegating prescriptive
authority, and consequently there is no reference on this issue. However, based on
conversations with BON staff, the BON would expect APRNs to have a delegating physician
whose specialty is logically related to the APRN's. Most importantly, the physician should be
treating a population of patients similar to the one the APRN is treating. The physician must be
available for consultation and referral for patients that are beyond the APRN's education and
experience, and the physician cannot serve that function unless the APRN's patients are also
patients that the physician would also see in his/her practice.
For instance, a pediatrician could delegate prescriptive authority to a family nurse practitioner
who only cares for infants, children, adolescents and young adults through age 21. However, it
would not be appropriate for a pediatrician to delegate prescriptive authority to a FNP who is
seeing adult patients, except in very special circumstances. An example of such a special
circumstance would be a pediatrician who specializes in cystic fibrosis. That pediatrician might
continue to treat young adults with that disorder. It would be appropriate for that pediatrician to
delegate prescriptive authority to a FNP who is also seeing those patients.
As another example, it would not be appropriate for an adult cardiologist to delegate prescriptive
authority to a family nurse practitioner who is seeing primary care patients in the full scope of
the FNP's practice. The cardiologist would not be an appropriate physician to consult regarding
children, women's health, and many of the other issues on which the FNP might require
consultation.
However, if the APRN cannot find one delegating physician who is appropriate for all the
patients the APRN sees, the APRN can create a safe environment for all the patients by finding
one or more physicians who are willing to consult with the APRN regarding those patients
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98
outside the delegating physician’s scope. If those physicians are also willing to delegate
prescriptive authority, that is even better. However, under current law, having a second
physician delegate prescriptive authority would not be necessary. The APRN is only legally and
ethically obligated to ensure that a mechanism for consultation and referral exists that will
ensure quality and continuity of care for all the APRN’s patients.
4.14 Physician Liability When Delegating Prescriptive Authority
A physician is not liable for the acts of an APRN just because the physician delegates
prescriptive authority to the APRN. The following is a provision in the Medical Practice Act.
§ 157.060, Texas Occupations Code. PHYSICIAN LIABILITY FOR DELEGATED ACT
Unless the physician has reason to believe the physician assistant or advanced practice
nurse lacked the competency to perform the act, a physician is not liable for an act of a
physician assistant or advanced practice nurse solely because the physician signed a
standing medical order, a standing delegation order, or another order or protocol
authorizing the physician assistant or advanced practice nurse to administer, provide,
carry out, or sign a prescription drug order.
This provision is in both the Medical Practice Act and in TMB rules, 22 TAC §193.6(m). In
addition, another TMB rule, 22 TAC §193.6(a), states that APRNs remain professionally
responsible for acts performed under the scope and authority of their own licenses.
However, 22 TAC §193.6(a) also includes a statement that confuses the issue. It states that
physicians remain responsible to the Texas Medical Board and their patients for medical acts
performed under the physician's delegation. Therefore, as always, liability is based on the facts
of the particular case. If a physician co-signs the entry in the chart or the physician is directly
involved in the care the patient received, none of the above provisions absolve a physician of
liability.
A statement by Carolyn Buppert, CRNP, JD, should be reassuring for physicians who work with
APRNs, however. She states "physician collaborators are being dropped from malpractice
lawsuits against NPs when the physician testifies that the NP did not consult him or her, and
when there is no evidence that the NP conferred with the physician about the case." lx
4.15 Information Required on a Prescription Signed By an APRN
The printed and/or written information that must be included on the prescription form is specified
in BON Rule 222.4 (c).
22 TAC §222.4 (c). [NOTE: The citation is linked to current BON rules. Below is text of draft rules
planned for adoption at the January 2010 BON meeting. Underlining indicates new language.]
(c) Prescription Information: The format and essential elements of the prescription shall
comply with the requirements of the Texas Board of Pharmacy. The following
information must be provided on each prescription:
(1) the patient's name and address;
(2) the name, strength, and quantity of the drug to be dispensed;
(3) directions to the patient regarding taking of the drug and the dosage;
lx
Buppert, C. (2002). “Do I Need All of My Emergency Room Charts Cosigned by a Physician?” Medscape.
Accessed: http://www.medscape.com/viewarticle/429841. (must login on this site)
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(4) the intended use of the drug, if appropriate;
(5) the name, address, telephone number, and, if the prescription is for a controlled
substance, the DEA number of the delegating physician;
(6) address and telephone number of the site at which the prescription drug order was
carried out or signed;
(7) the date of issuance;
(8) the number of refills permitted; and
(9) the name, prescription authorization number, original signature and, if the
prescription is for a controlled substance, the Texas Department of Public Safety and
United States Drug Enforcement Administration [DEA] numbers of the advanced practice
registered nursesigning or co-signing the prescription drug order.
In addition, if the prescription is for a controlled substance, then the Texas State Board of
Pharmacy (TSBP) requires that both the DEA number of the delegating physician and the
APRN appear on the prescription (either printed or hand written). As of September 1, 2008,
prescriptions for controlled substances will also have to include both the APRN’s and delegating
physician’s DPS controlled substances permit number.
4.16 Preventing Generic Substitution of a Drug
Generic substitution is the standard for pharmacists filling a prescription. However, in those rare
cases in which the delegating physician, patient or APRN thinks generic substitution is not
appropriate, there is a way to prevent generic substitution. The BON refers the APRN to Texas
Board of Pharmacy (TSBP) Rules for the appropriate method to prevent pharmacists from
substituting the drug specified on the prescription with a lower cost generic.
TSBP Rule 309.3 (c) requires the practitioner to write "brand necessary" or "brand medically
necessary" on the face of the prescription in their own handwriting. If more than one drug is
prescribed on one prescription form, the practitioner must clearly indicate which drug may not
be generically substituted. If not clearly indicated, then the pharmacist is permitted to substitute
all the drugs. The rule also permits preventing generic substitution on a prescription that is
verbally or electronically submitted to the pharmacy through verbal instructions or by printing
"brand necessary" or "brand medically necessary". However, if the prescription is for a Medicaid
patient, then that verbal or electronic prescription must be followed with a handwritten
prescription faxed to the pharmacy within 30 days.
A prescription order form may, but is not required to, contain the following reminder at the
bottom. "A generically equivalent drug product may be dispensed unless the practitioner hand
writes the words 'Brand Necessary' or 'Brand Medically Necessary' on the face of the
prescription." 40
4.17 Calling Prescriptions to the Pharmacy for the APRN
While APRNs are not permitted to designate an agent to verbally transmit (call in) prescriptions
to the pharmacy for the APRN, the Pharmacy Practice Act contains a provision under which this
may occur.
§563.051(e), Texas Occupations Code (Pharmacy Practice Act)
A practitioner may designate a licensed vocational nurse or a person having education
equivalent to or greater than that required for a licensed vocational nurse to
communicate the prescriptions of an advanced practice nurse or physician assistant
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authorized by the practitioner to sign prescription drug orders under Subchapter B,
Chapter 157.
This provision permits a LVN or RN to call a prescription to the pharmacy for the APRN if the
delegating physician designates one or more LVNs and/or RNs to perform this task. The
delegating physician may also designate a person with education or experience equivalent to
that of a LVN. Examples of persons who might qualify would be a medical assistant who had
basic nursing courses that included medication administration, but never completed the program
to become licensed. Another medical assistant who might qualify would be one with years of
previous and proven competency in calling prescriptions to the pharmacy. The person/s
permitted to call prescriptions to the pharmacy must be designated in the practice protocol or in
another written document that is maintained on site.
While it is legal for designated persons to call prescriptions to the pharmacy for the APRN, this
should be used only as a last resort. There is a high potential for errors when practitioners call a
prescription to the pharmacy, and this potential is increased when a third party communicates
the information to the pharmacist. If the patient prefers not to take a prescription to the
pharmacy to be filled, it is much safer to fax a written prescription or send it by a secure
electronic method.
4.18 Pharmacists Must Include the APRN's Name on the Rx Label
If a prescription is signed by an APRN, the law requires pharmacists to put the names of the
delegating physician and the APRN who signed the prescription on the prescription bottle label.
This sometimes is a problem because some pharmacy software programs only allow for one
line. However, that does not exempt pharmacists from meeting the requirement. Both the
statute, §483.042 (a)(1)(B)(iv), Texas Health & Safety Code (in the Dangerous Drug Act) and
Pharmacy Board Rule 291.33 (c)(7)(A)(xii), require pharmacists to include both names. This rule
is copied below with the pertinent provision emphasized in bold type.
22 TAC §291.33(c)(7)(A), [in part] (TSBP Rule)
(7) Labeling.
(A) At the time of delivery of the drug, the dispensing container shall bear a label in
plain language and printed in an easily readable font size with at least the following
information:
(i) name, address and phone number of the pharmacy;
(ii) unique identification number of the prescription;
(iii) date the prescription is dispensed;
(iv) initials or an identification code of the dispensing pharmacist;
(v) name of the prescribing practitioner;
(vi) name of the patient or if such drug was prescribed for an animal, the species of
the animal and the name of the owner;
(vii) instructions for use;
(viii) quantity dispensed;
(ix) appropriate ancillary instructions such as storage instructions or cautionary
statements such as warnings of potential harmful effects of combining the drug product
with any product containing alcohol;
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(x) if the prescription is for a Schedules II - IV controlled substance, the statement
"Caution: Federal law prohibits the transfer of this drug to any person other than the
patient for whom it was prescribed";
(xi) if the pharmacist has selected a generically equivalent drug pursuant to the
provisions of the Act, Chapters 562 and 563, the statement "Substituted for Brand
Prescribed" or "Substituted for 'Brand Name'" where "Brand Name" is the actual name of
the brand name product prescribed;
(xii) the name of the advanced practice nurse or physician assistant, if the
prescription is carried out or signed by an advanced practicenurse or physician
assistant in compliance with Subtitle B, Chapter 157, Occupations Code;
[emphasis added] and
(xiii) the name and strength of the actual drug product dispensed, unless otherwise
directed by the prescribing practitioner.
It is important for the patient that the name of the practitioner that actually prescribed the
medication appears on the bottle. This assures the patient knows who to call if there is a
question. It is absolutely appropriate for APRNs to ask pharmacists to comply with this legal
requirement to include the APRN’s name on the prescription label.
However, it is also important for APRNs to appreciate that including the APRN’s name on the
bottle is extra work for the pharmacist and acknowledging that fact can sometimes be helpful.
Approaching this as a patient safety issue can also help. If the labeling software used by the
pharmacy only permits one line for the prescribing practitioner’s name, suggest the solution
other pharmacists use. It is acceptable to put both practitioners’ names on one line with a slash
between them: APRN’s name, NP/ physician’s name, MD.
4.19 Signing for and Distributing Drug Samples
An APRN who has prescriptive authority may sign for and distribute drug samples at the
practice site. The authority is limited to those drugs that the APRN could legally prescribe. For
instance, if the APRN's prescriptive authority does not include controlled substances, then the
APRN would not be permitted to sign for samples of a cough syrup that contained codeine.
BON Rule 222.11 specifies the requirements for APRNs who accept and distribute drug
samples.
22 TAC §222.11 (BON Rule) [NOTE: The citation is linked to current BON rules. Below is text of draft
rules planned for adoption at the January 2010 BON meeting. Underlining indicates new language.]
The advanced practice registered nurse with a valid prescription authorization number
may request, receive, possess and distribute prescription drug samples provided:
(1) all requirements for the advanced practice registered nurse to sign prescription
drug orders are met;
(2) Protocols or other physician orders authorize the advanced practice registered
nurse to sign the prescription drug orders;
(3) the samples are for only those drugs that the advanced practice registered
nurse is eligible to prescribe in accordance with the standards and requirements set forth
in this chapter; and
(4) a record of the sample is maintained and samples are labeled as specified in
the Dangerous Drug Act (Health and Safety Code, Chapter 483) or the Controlled
Substances Act (Health and Safety Code, Chapter 481) and 37 Texas Administrative Code,
Chapter 13.41
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APRNs are often asked by pharmaceutical representatives if they may legally accept and sign
for prescription drug samples. APRNs should not be insulted by the inquiry. Pharmaceutical
companies face penalties if representatives distribute samples to persons not licensed to
prescribe, or otherwise legally authorized to receive those samples. Showing the drug
representative a copy of the BON's rule on obtaining and distributing drug samples and the
Practice Agreement Protocol should resolve the question.
All practices that receive drug samples are required to keep records of obtaining and distributing
those samples. The practice must maintain copies of the sheets with the names of the drugs
and lot numbers for at least two years. Also, a notation must be made in each patient's chart
when a sample is distributed. While not required by rule, the gold standard is to keep a log of all
drugs distributed that includes the name of the patient, the drug, lot number and date. This
enables the APRN to have a readily accessible list of patients who received a drug sample
should that medication be recalled.
APRNs must also ensure that samples they distribute are properly labeled. Include the patient's
name and instructions for taking the medication that include the dosage, frequency and duration
of treatment.
4.20 May a Physician Pre-Sign a Prescription for a Schedule II Drug?
It is never legal for a physician to presign a prescription for a Schedule II drug or any other
controlled substance. Except under very limited emergency situations, a pharmacist must have
a written triplicate prescription in order to dispense a Schedule II drug. It is illegal for a
physician to pre-sign a triplicate form. Charges can be filed against any physician who presigns
these forms and it is a felony offense that can result in a fine, a significant jail term, or both. Any
APRN completing these pre-signed forms could also be subject to similar penalties and such
actions on the part of the APRN would be a violation of the Nursing Practice Act.
4.21 Content that Must Be Included in a Practice Agreement Protocol
As noted earlier, in all sites the physician and APRN must develop a Practice Agreement
Protocol that delegates the authority to perform medical aspects of care, e.g., make medical
diagnoses and prescribe medications. This is often confusing to many people, especially in
hospitals, where protocols usually prescribe specific steps to treat the patient who is evidencing
certain signs and symptoms.
In this case, the protocol necessary to delegate ordering medical drugs, devices and biologicals
is a legally defined term. The legal definition states that the protocols do not need to be specific
and should be designed to allow the APRN to exercise professional judgment based on the
education and experience of the APRN. The specificity of the protocols should reflect the
APRN's level of education and experience as well as the acuity of the patient population. The
practice agreement protocol is to be kept up to date. At a minimum, the protocol must be
reviewed and signed by the APRN, delegating physician and alternate physicians annually. The
BON Rules give general guidance about protocols.
22 TAC §222.4 (BON Rule) [NOTE: The citation is linked to current BON rules. Below is text of draft
rules planned for adoption at the January 2010 BON meeting. Underlining indicates new language and
strikethroughs indicate language that will be deleted.]
(a) The advanced practice registered nurse with a valid prescription authorization
number:
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(1) shall carry out or sign prescription drug orders for only those drugs
that are:
(A) authorized by Protocols or other written authorization for
medical aspects of patient care; and
(B) prescribed for patient populations within the accepted scope of
professional practice for the advanced practice registered nurse's specialty area of
licensure; and
(2) shall comply with the requirements for adequate physician supervision
published in the rules of the Texas Medical Board of Medical Examiners relating to
Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician
Assistants and advanced practice registered nurses as well as other applicable laws,
(b) Protocols or other written authorization shall be defined in a manner that
promotes the exercise of professional judgment by the advanced practice registered
nurse commensurate with the education and experience of that person.
(1) A protocol or other written authorization:
(A) is not required to describe the exact steps that the advanced practice
registered nurse must take with respect to each specific condition, disease, or symptom;
and
(B) may state types or categories of medications that may be prescribed
or contain the types or categories of medications that may not be prescribed.
(2) Protocols or other written authorization:
(A) shall be written, agreed upon and signed by the advanced practice
registered nurse and the physician;
(B) reviewed and signed at least annually; and
(C) maintained in the practice setting of the advanced practice registered
nurse.
Similar information about orders and protocols is contained in the Medical Practice Act.
§ 157.055, Texas Occupations Code (Medical Practice Act)
A protocol or other order shall be defined in a manner that promotes the exercise of
professional judgment by the advanced practice nurse and physician assistant
commensurate with the education and experience of that person. Under this section, an
order or protocol used by a reasonable and prudent physician exercising sound medical
judgment:
(1) is not required to describe the exact steps that an advanced practice nurse or a
physician assistant must take with respect to each specific condition, disease, or
symptom; and
(2) may state the types or categories of medications that may be prescribed or the types
or categories of medications that may not be prescribed.
The most detailed information about the practice agreement protocol is in the definition of
"protocol" in the Medical Board Rules. This definition is the same one that appears in section
4.2 of this chapter.
22 TAC §193.2 (10) (Medical Board Rule)
(10) Protocols -- Delegated written authorization to initiate medical aspects of patient
care including authorizing a physician assistant or advanced practice nurse to carry out
or sign prescription drug orders pursuant to the Medical Practice Act….The protocols
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must be agreed upon and signed by the physician, the physician assistant and/or
advanced practice nurse, reviewed and signed at least annually, maintained on site, and
must contain a list of the types or categories of dangerous drugs available for
prescription, limitations on the number of dosage units and refills permitted, and
instructions to be given the patient for follow-up monitoring or contain a list of the types
or categories of dangerous drugs that may not be prescribed. Protocols shall be defined
to promote the exercise of professional judgment by the advanced practice nurse and
physician assistant commensurate with their education and experience. The protocols
used by a reasonable and prudent physician exercising sound medical judgment need
not describe the exact steps that an advanced practice nurse or a physician assistant
must take with respect to each specific condition, disease, or symptom.
Note that both the BON Rule and the Medical Practice Act state that the protocols may contain
a list of drugs, or categories of drugs the APRN may or may not prescribe. The TMB Rule says
the protocol must contain such a list. Because the protocol must conform to the most restrictive
requirement, the protocol must refer to categories of drugs the APRN may or may not prescribe.
TMB Rule 193.6 (a), describing the purpose of the rule, also informs the APRN about the
content and reason for the Practice Agreement Protocol. It also helps the APRN and physician
understand the relationship that must exist between them and the responsibility each retains in
caring for the patient. The applicable portion of the rule is copied below.
22 TAC §193.6 (a) [in part] (Medical Board Rule)
…Such protocols may authorize diagnosis of the patient's condition and treatment,
including prescription of dangerous drugs or controlled substances Schedules III - V as
provided under subsection (n) of this section. Proper use of protocols allows integration
of clinical data gathered by the physician assistant or advanced practice nurse. Neither
the Act, §§157.051 - 157.060, nor these rules authorize the exercise of independent
medical judgment by physician assistants or advanced practice
nurses, and the delegating physician remains responsible to the board and to his or her
patients for acts performed under the physician's delegated authority. Advanced practice
nurses and physician assistants remain professionally responsible for acts performed
under the scope and authority of their own licenses.
The type of protocol and the specificity should be contingent upon 6 factors:
1) Texas law as outlined above
2) the complexity of the specific medical aspects of care to be performed by the APRN
3) the experience and education of the APRN
4) the type of site and availability of medical consultation
5) the input of the delegating physician
6) any federal regulations applicable to the site.
Practice Agreement Protocol (protocol) should contain the practice setting where the protocol
will be used, the scope of the APRN's practice, the physician's responsibility for consultation
availability, and the supervision of prescriptive authority. Also, the TMB requires that the
protocol address the type of controlled substances and dangerous drugs that the APRN may
prescribe as well as any limits that have been placed on any prescriptions. Any licensed
personnel that will be calling in prescriptions to pharmacies for the APRN must be identified, per
§563.015(e) of the Texas Occupations Code.
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4.22 Sample Practice Agreement Protocol
This chapter ends with a sample of the Practice Agreement Protocol created for APRNs
practicing in outpatient settings. It can be copied and modified by the person who purchases
the manual.
This sample Practice Agreement Protocol (also referred to as “protocol”) is intended for
outpatient clinics and practice sites in which APRNs only occasionally see hospitalized patients.
This sample protocol is sold as a separate document on the CNAP website,
www.cnaptexas.org. It is updated as rules change and is sold at a substantially reduced price to
those who have previously purchased this manual or a Sample Practice Agreement Protocol. A
sample protocol modified specifically for inpatient hospital settings is available in the CNAP
manual on hospital credentialing, also available on CNAP's website. Both of these versions if
the sample protocols contain sections with definitions and forms that may be needed in those
settings.
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CNAP’s Sample
Practice Agreement Protocol / Prescriptive Authority Protocol
Revised August 1, 2009
Authors: The Sample Practice Agreement Protocol (PAP) is based on a document originally
developed by Judith C.D. Longworth and downloaded from the National Organization of Nurse
Practitioner Faculties Website, www.nonpf.com. Lynda Woolbert, RN, PNP, modified the
document based upon specific requirements in Texas, and added Texas laws and citations.
Questions may be directed to Lynda Woolbert at [email protected].
Disclaimer: Lynda Woolbert is not an attorney. This Sample Practice Agreement Protocol
provides the purchaser with basic information and a format to adapt for use in the purchaser’s
practice. It is accurate to the best of Lynda Woolbert’s knowledge. However, it does not purport
to offer legal advice or substitute for the advice of legal counsel as to how the sample practice
agreement protocol, and the information contained therein, applies to specific situations. If
legal questions arise, consult an attorney.
Instructions for Completion
Options and Modifications: This document contains many explanations or choices that are
bracketed and/or printed in another font. [Any bracketed information] is a prompt to
include or modify the text as appropriate to your practice. Explanatory comments
printed in this font should be deleted from the final document that you use as your protocol.
Some delegation statements may be combined or deleted, as appropriate to the practice. Most
of these documents are only 2 to 4 pages in length when completed. This document represents
only one of many possible formats and contains more information than is required by law.
Therefore your finished document could look very different but still be acceptable to the Texas
Nursing and Medical Boards.
This document is equally applicable to the practice of Nurse Practitioners, Certified NurseMidwives and Clinical Nurse Specialists. Therefore “Certified Nurse-Midwife” (CNM) or “Clinical
Nurse Specialist” (CNS) can be added or substituted any place that “Nurse Practitioner”, “NP” or
“APRN” is used. In the rare instances that a CRNA needs to sign prescriptions (e.g. pain clinics
or for pain management upon discharge from the hospital), this document is appropriate for
that purpose. However, it should be noted that CRNAs are not required to have a protocol in
place to deliver anesthesia and other anesthesia related services.
Title of the Document: You may title this document anything you like. Other appropriate
names, other than the two options above, would be “Delegation Protocol,” “Delegation
Agreement” or “Collaborative Agreement.” CNAP always refers to these documents as
“protocols” because that is the legal term used to describe the document that is required by law
if a physician delegates the ordering or prescribing of drugs to NPs, CNSs and CNMs. CRNAs are
not required to have this type of document because of a specific provision in the Medical
Practice Act (§157.058, Texas Occupations Code).
Purpose & Development, Revision, Review and Approval: These sections are not
required by law but are included because they help the physicians and APRNs understand their
role and responsibilities without having to refer to laws or rules. Including the statement in the
second paragraph of the “Purpose” is highly recommended so surveyors that are not familiar
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with the rules on delegation protocols for APRNs will not conclude that the APRN’s services are
limited to those that are delegated in this document.
Setting: It is required by law to specify the type of practice site, i.e. facility-based (hospital or
long-term care), primary practice, medically underserved or alternate site. Each type of site may
have multiple settings included in the definition and the type of site also determines the type of
physician supervision that is required and delineated in this protocol.
All protocols being executed for inpatient settings are probably going to be a facility-based or a
primary practice site. For instance, a physician may delegate Rx authority in the physician’s
office (setting 1) and in the hospital (setting 2) but both would be under the primary practice
site designation. As another example: the physician is delegating Rx authority in the hospital
(setting 1) as a facility-based practice, but the APRN may also work a few hours a week in an
out-patient clinic (setting 2). If the clinic is within the hospital, this may still be a facility-based
practice. If the out-patient clinic has a different address than the hospital, then it will be
designated under one of the other designations: a physician’s primary practice site, an alternate
site, or a medically underserved site.
In 2009, additional settings were added under the primary practice site if the APRN works with
the delegating physician more than 50% of the time. In that case, the physician may also
delegate prescriptive authority at one additional site and at certain voluntary charity care or
disaster relief sites. If the physician is also delegating prescriptive authority in any or all of
those additional settings, they should also be listed under the settings. An address for a disaster
relief site would not need to be included.
For additional guidance on determining the type of practice site, see the ”Explanatory Notes”
and “Resources” sections at the end of this document. A Guide for APRN Practice in Texas is
available for purchase through CNAP or Texas Nurse Practitioners and contains detailed
information on the types of sites, as well as many other aspects of APRN prescriptive authority
and practice.
Delegation of Prescriptive Authority & Other Medical Acts: The statements will be
modified based on what medical acts the physician is delegating. Delete any of the lettered
sections that are not applicable and re-letter as appropriate.
If there are no special instructions or required follow-up beyond what is standard for the drug,
and the physician is delegating ordering and prescribing of dangerous drugs and controlled
substances, then the following statement might be appropriate and could be used in place of all
the lettered subsections.
“The nurse practitioner may write orders for and prescribe all categories of drugs,
including Controlled Substances, III - V. The NP may also accept and distribute
samples for those drugs. Instructions to patients and follow-up on medications are
those that would be standard for the drug. When prescribing drugs, generic
substitution for all drugs is permitted and up to six refills for non-controlled drugs
are permitted.
When prescribing controlled substances, the NP is limited to prescribing no more
than a 90-day supply and refills are not permitted. Prescribing the same controlled
substance for the same patient is only permitted after consultation with the
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physician. If the controlled substance is prescribed for a child less than 2 years of
age, the NP must consult before writing the prescription. In all cases, the NP must
note the consultation in the chart.”
This section might also include any medical devices and biologicals, such as blood, that would
be ordered by the APRN. If the physician also delegates authority to nurses in the practice to
call prescriptions to the pharmacy for the APRN, retain that subsection (currently lettered D).
Subsection E clarifies that the APRN may perform certain procedures. The procedures listed in
this section are usually performed by physicians or residents and are procedures not generally
taught in most educational programs for the APRN’s role and population focus. Procedures that
all RNs may perform and those commonly performed by this type of APRN should not be listed.
Always list procedures that are normally not performed by this type of APRN. This is especially
important if the APRN has not been privileged to perform the procedure through a hospital or
other credentialing & privileging process. It is also acceptable to list procedures that are
standard for APRNs practicing on a particular hospital service or the protocol may refer to job
descriptions and privileging documents. It is important to note that just because a procedure is
listed in this section it does not necessarily indicate that the procedure must be delegated by
the physician. If the APRN is experienced in performing a procedure and has validated
competency (and in a hospital is privileged to do so) then the APRN is performing the procedure
as part of the APRN’s scope of practice.
Subsection F may be included to allow the APRN to sign medical verifications for certain
patients with mobility impairments that qualify for a disabled parking placard. The subsection
lists the limitations on this authority per SB 1984 (Acts of the 81st Regular Session, Texas
Legislature).
Consultation: This section is written in a very general way to only include consultation that is
required by law. If including any additional requirements for consultation, remember there may
be legal implications, so nothing should be listed that does not always trigger consultation.
Supervision and Documentation of Supervision: A number of titles could be used for this
section. An alternate title such as “Collaboration and Documentation of Collaboration” would be
appropriate. This section can easily be combined with the section on “Evaluation of Clinical
Care” and called, “Supervision and Evaluation of Clinical Care” or “Collaboration and Quality
Assurance.” The purpose is to specify what is required of the physician and to specify that the
physical presence of the physician is not required. It may be preferable to specify the specific
supervision activities that the physician is required to perform by law rather than the statement,
“Supervision shall be consistent with any requirement specified in Texas Medical Board Rule
193.6 for the practice site identified in this agreement.” Since the physician supervision
requirements vary substantially based on the type of practice site, it is highly recommended
that the physician read the Texas Medical Board rules contained in §193.6. Some of the
definitions contained in §193.2 are also important. The Board of Nursing requires APRNs to
know and understand the rules on physician supervision for each type of site in which the APRN
has been delegated prescriptive authority.
Evaluation of Clinical Care: Quality assurance is a vital element of any practice. Be sure to
retain evidence of performing any QA activities listed in the protocol.
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Education, Training, Certification, Licensure & Authorization to Practice: In hospitals
that have a credentialing and privileging process for APRNs, this section is unnecessary and can
be deleted. This section is generally helpful for practices that do not have a formal credentialing
process or related policies.
Treatment Guidelines: Treatment guidelines are not required by law, but many services in
hospitals will have treatment guidelines to standardize medical care. Also outpatient clinics may
utilize evidence-based guidelines. Federally designated Rural Health Clinics are also required to
have treatment guidelines or standard references. Never list treatment guidelines unless they
are followed precisely. The rationale for any deviation from treatment guidelines must be
documented in the patient’s medical records so listing specific treatment guidelines for a given
diagnosis or presentation has legal implications.
Statement of Approval: Protocols must be updated as needed, but at a minimum the law
requires reviewing the protocols at least annually. All parties must sign and date the “statement
of approval” upon completion of each review. These dated signature pages must be retained
with the protocols or in an immediately available location to prove that the protocols were
reviewed at least annually.
While not required by rules, we recommend that physicians verify the RN license and APRN
authorization of the APRNs to whom they delegate prescriptive authority. Physicians should also
verify that the APRN has a prescriptive authority number issued by the BON. To verify these
credentials, go to http://www.bon.state.tx.us/olv/verification.html.
Changes in the Medical Practice Act Since 2005 Affecting Delegating Physicians: The
name of the Texas Board of Medical Examiners was changed to the Texas Medical Board (TMB).
Other revisions in the Medical Practice Act prompted changes in the Texas Medical Board Rules
that were adopted on January 20, 2006. From that date through September 1, 2009, physicians
were no longer required to complete the Prescriptive Authority Delegation Form and send it to
the Texas Medical Board. Instead, the physician was required to keep a permanent
record of to whom the physician delegates prescriptive authority, the dates on
which the physician originally signed the practice protocols, the dates of each
protocol review, and the date prescriptive authority was terminated. (See form #4).
This requirement could also be met by ensuring that the physician has his/her own set of
signed and dated practice protocols.
Upon adoption of revised TMB Rules implementing SB 532 passed in 2009, physicians will again
be required to register the names of APRNs and PAs to whom the physician delegates
prescriptive authority. This will eventually be an online registration process. The TMB is required
to adopt rules and implement this registration process no later than January 31, 2010 but the
TMB anticipates starting with a paper registration on September 1, 2009, the date of
implementation of SB 532. For more information see the TMB or CNAP Websites.
Rule Changes Affecting APRNs:
As of December 31, 2004, APRNs must verify that delegating and alternate physicians possess
an unrestricted Texas license. This information may be verified on the Medical Board Website.
(Accept the terms, enter the physician’s information, then click on the physician’s name for
complete information.)
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In 2007, the Nursing Practice Act was amended, changing the name of the Board of Nurse
Examiners for the State of Texas to the Texas Board of Nursing (BON). The 80th Texas
Legislature authorized Texas to join the Advanced Practice Registered Nursing Interstate
Licensure Compact. However, the APRN Compact has not yet been implemented because it has
only been authorized by three states, Utah, Iowa and Texas. It is anticipated that the APRN
Compact will be implemented by December 31, 2011.
On November 14, 2008, the BON adopted amendments to Rules 221.4 and 221.6. The rule
amendments were adopted to start aligning BON Rules with the APRN Compact in preparation
for implementing the Compact. The BON changed the term, “Advanced practice registered
nurse,” to “Advanced Practice Registered Nurse (APRN).” However, the rule that specifies how
APRNs are to identify themselves has not yet been revised. BON staff indicates they will
propose other rule revisions to change the terminology for APRNs in other rules by the end of
2010. Rule revisions in Chapter 222 related to changes created by SB 532 should be adopted by
January 2010.
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Practice Agreement Protocol
for a Nurse Practitioner or other Advanced practice registered nurse in Texas
[SAMPLE – Revised August 1, 2009]
Purpose
This document authorizes the nurse practitioner/s (NP) [specify other type/s of advanced
practice registered nurses, e.g. CNM or CNS as appropriate throughout the document] to
perform medical acts in accordance with the Nursing Practice Act, §301.152, Texas Occupations
Code and the Medical Practice Act, §157.051 – 157.060, Texas Occupations Code. This
document delegates certain medical acts, as required by Texas law, and sets forth guidelines
for collaboration between the delegating physician(s) and the nurse practitioner(s).
[Except if specifically stated in this document,] This agreement is not intended to limit the
health care services the nurse practitioner/s shall provide under his or her scope of practice,
based on the advanced practice role and specialty authorized by the Texas Board of Nursing.
These services include, but are not limited to, performing physical examinations and medical
histories, ordering laboratory tests and radiologic exams, providing health promotion and safety
instructions, management of acute episodic illnesses and stable chronic diseases (not involving
prescription drugs), and referrals to other health care providers, as needed.
Development, Revision, Review and Approval [This is an optional section that may be deleted
from the protocols, but contains important information on legal requirements for reviewing, revising and
signing the protocols.]
The protocols are developed collaboratively by the nurse practitioner/s and delegating
physician. [If more than one type of advanced practice registered nurse is being delegated authority to
diagnose and prescribe, then the term “advanced practice registered nurses” or “APRNs” can be substituted for
naming the specific type of APRN throughout the remainder of the document.] Protocols will be reviewed
annually, dated, and signed by the above parties and any alternate physicians. The agreement
[and associated treatment guidelines] will be revised more frequently as necessary.
The “Statement of Approval” will be signed by all parties [physicians, alternate delegating physicians,
and APRNs] recognizing the collegial relationship between the parties and their intention to
follow these protocols. Signature on the “Statement of Approval” implies approval of all the
policies, protocols and procedures in, or referenced in, this document. Nurse practitioners and
physicians who join the staff after approval or renewal also review and sign the protocols.
Type of Site and Setting(s)
The nurse practitioners will practice under these protocols at the [specify clinic, office or type of
institution] located at [insert address] under the designation of [identify type of site]. [If
prescriptive authority is delegated at more than one type of practice site and/or in more than one setting, the
format below might be used.]
The nurse practitioners will practice under these protocols at the types of sites and in the
settings listed below.
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112
[Type of Site, i.e. primary practice site, alternate site, facility-based (specifying hospital or longterm care) or medically underserved site]
1. [Name of Practice, Clinic, Hospital, Nursing Facility 1] : [address]
2. [Name of Practice, Clinic, Hospital, Nursing Facility 2] : [address]
3. [etc]
[Type of Site]
1. [Name of Practice, Clinic, Hospital, Nursing Facility 1] : [address]
2. [Name of Practice, Clinic, Hospital, Nursing Facility 2] : [address]
3. [etc]
[ By law, a copy of the protocols must be kept at each site. If there are any associated practice guidelines, those
guidelines should also be kept with the protocols.]
Delegation of Prescriptive Authority & Other Medical Acts
The nurse practitioner/s [or name individual/s] may establish medical diagnoses for patients
that are within his/ [her/their] scope/s of practice, and order or prescribe legend drugs and
medical devices as authorized by the Texas Board of Nursing (BON) under Rule 222, and the
Texas Medical Board (TBM) under Rules 193.2 and 193.6.
A. The nurse practitioner may order or prescribe:
1. Dangerous drugs
[The TMB rules state that the drugs or categories of drugs that may, or may not, be prescribed
should be listed. If there are not limitations, specify that all categories of dangerous drugs (defined
as all drugs that can only be dispensed with a prescription from a licensed practitioner, excluding
controlled substances.) are included, or if there are any limitations on the authority to prescribe
dangerous drugs, also specify those limitations. Also identify any limitations, such as drugs that
may or may not be generically substituted and the number of refills that the APRN may prescribe.
No limitations are required by law. Also see #3 below. It should be noted that the legal definition
of “dangerous drugs” includes medical devices. Therefore, if there are any limitations on
prescribing medical devices, that should also be noted in this section. The following statement
would be typical if there are no limitations.]
The nurse practitioner may write orders for and prescribe all categories of dangerous
drugs that are within the NP’s scope of practice. When prescribing drugs, generic
substitution for all drugs is permitted.
2. Controlled Substances, Schedules III – V
A Limited to a 90-day supply or less (on or after 9-01-09. Until that date the supply
is limited to 30 days.)
B No refills after the initial 90-day supply without prior consultation with the
physician.
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113
C No prescription for children under 2 years of age without prior consultation with
the physician.
D Prior consultation must be noted in the chart.
[The above limitations are required by law. Specify any other limitations the delegating physician
places upon the authority to prescribe]
3. Refills and Follow-up.
The APRN may authorize up to ___ refills of dangerous drugs. [The maximum number of refills is
usually six, but the delegating physician may wish to limit that number for certain drugs or categories of
drugs. Also include any limitation on the number of dosage units, any specific instructions that must be
given to patients, or any follow-up monitoring required for a specific drug or classification of drugs. (Based
on definition of protocol in TMB Rule §193.2(10).) If there are no limitations, specific instructions or
monitoring beyond that which would be considered standard for the drug or drug classification, state that
affirmatively. See the “Instructions for Completion” for a general statement that might be used in place of
subsections A1 – 3.]
B. Dispensing Directives for Schedule II Controlled Substances.
[ This Section only applies if the NP is seeing patients in the hospital or needs to select Controlled Substances,
Schedule II, to administer in an office or outpatient setting. Under the circumstances specified in this protocol,
the NP may direct the hospital pharmacy to dispense Controlled Substances, Schedule II, for administration to
in-patients or for patients being treated in the emergency room, and may select and administer Schedule II
drugs in outpatient settings within the specified parameters. This is essentially equivalent to a standing
medical order, and, if implemented in a hospital, must be consistent with hospital bylaws and policies. Identify
patient signs or symptoms that require treatment with a Schedule II drug and designate specific drugs that the
NP may select, and dosage and frequency parameters for each drug in the table provided above. The physician
is not authorized to delegate ordering Schedule II drugs, and this section of the protocol is interpreted to be the
physician’s medication order (a standing medical order). Therefore, instructions in the protocol must be specific
(as demonstrated below) and orders written for Schedule II drugs by NPs or CNSs should include “per
protocol” or “per standing medical order.” APRNs may NOT sign a prescription for a Schedule II drug to be
filled at an outpatient pharmacy or order a Schedule II drug for a patient in a long-term care facility. In
addition it is illegal for a physician to pre-sign a blank prescription for a Schedule II, Controlled Substance. If
no authority is being given to write dispensing directives for Schedule II drugs, then delete this section and reletter subsequent sections appropriately,]
Pursuant to the standing medical order below, the NP may select and write dispensing and
administration directives for the following Schedule II Controlled Substances. (This section is
NOT to be interpreted to permit the NP to sign a prescription for a Schedule II drug.)
1. The NP may only execute this standing medical order in the following hospital [or
specify other appropriate setting] in which the order has been approved by the medical
staff: __________________________________________
2. The signs and symptoms requiring treatment with Schedule II drugs are:
_____
3. The Schedule II drugs that may be selected, with the dosage and frequency
parameters for each drug are listed below.
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114
Drug
Dose parameters
Frequency parameters
[The previous paragraph does not apply to CRNAs or CNMs. The authorization of certified registered
nurse anesthetists to order all drugs and devices necessary to administer anesthesia is delineated in law,
Texas Occupations Code §157.058, and by TSBME Rule §193.6 (k). The authority for CNMs to provide
controlled substances for their patients is in the Texas Occupations Code §157.059 and in TSBME Rule
§193.6 (l). If CNMs need to provide Schedule II drugs for hospitalized patients outside of the intrapartal
and immediate postpartal periods (48 hrs.), physicians can use the protocols to permit CNMs to write a
directive to the pharmacy to dispense a Schedule II drug by the same mechanism outlined above.]
C. Drug Samples.
The nurse practitioner may accept, sign for and distribute prescription drug samples. The NP
must maintain any requests they sign when receiving drug samples. In addition the APRN must
note in the patient’s chart any sample distributed. The date, drug, dosage, frequency and
duration of treatment must be noted in the patient’s chart and included on the sample
distributed to the patient. [One may also wish to maintain a record of distribution that includes the date of
distribution, the patient’s name, the name and strength of the drug, lot number, and directions for use. See Sample Form
#3 at the end of the document.]
D. Persons Who May Call Prescription to the Pharmacy as Directed by the APRN.
The physician designates any licensed vocational nurse or registered nurse working or
volunteering in this site as a person who may call a prescription into a pharmacy on behalf of
the nurse practitioner/s.
[The law also permits the physician to designate persons that have education or experience equivalent to that of
an LVN to call prescriptions to the pharmacy for the APRN. Any such persons should be designated by name.
For more information, see Explanatory Notes.]
E. Medical Procedures.
[In this section, identify any medical procedures the NP may perform that would not be within the NP’s
normal scope of practice. Documentation should be maintained in the nurse practitioner’s file verifying the
education or training that qualifies the NP to perform this procedure. This would include courses or
fellowships completed with course descriptions and/or, objectives, check sheets and signed documentation that
the procedure was successfully performed a specified number of times under direct supervision. It is also
recommended to maintain a record of the procedures completed, complications, patient outcomes and a record
verifying ongoing competency.]
F. Medical Verifications for Disabled Parking Placards.
The APRN may sign a prescription or notarized statement for certain patients that meet the
legal requirements for a temporary disabled parking placard. The APRN is limited to signing
verifications that will accompany the initial application for patients residing in counties with a
population of 125,000 or less. [These limitations are based on §681.003, Transportation Code, as amended
by SB 1984 (Acts of the 81st Legislature, Regular Session).] Subsequent renewals or verifications for
permanent parking placards must be signed by the physician.
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Qualifying Conditions under §681.001, Transportation Code
1) Persons with a mobility problem that substantially impairs the ability to ambulate
including:
(A) cannot walk 200 feet without stopping to rest;
(B) cannot walk without the use of or assistance from an assistance device, including a
brace, a cane, a crutch, another person, or a prosthetic device;
(C) cannot ambulate without a wheelchair or similar device;
(D) is restricted by lung disease to the extent that the person's forced respiratory
expiratory volume for one second, measured by spirometry, is less than one liter, or
the arterial oxygen tension is less than 60 millimeters of mercury on room air at rest;
(E) uses portable oxygen;
(F) has a cardiac condition to the extent that the person's functional limitations are
classified in severity as Class III or Class IV according to standards set by the
American Heart Association; or
(G) is severely limited in the ability to walk because of an arthritic, neurological, or
orthopedic condition.
2) Persons with visual disabilities including:
(A) Visual acuity of 20/200 or less in the better eye with correcting lenses or
(B) A limited field of vision in which the widest diameter of the visual field subtends an
angle of 20 degrees or less.
Consultation
The Nurse Practitioner/s is/are to immediately report any emergency situations after stabilizing
the patient, and give a daily status report on any occurrences that fall outside the protocols.
The NP will seek physician consultation when needed. Whenever a physician is consulted, a
notation to that effect, including the physician's name should be recorded in the patient's
medical record. [Consultation should also be noted on the log, if one is required. To clarify the relationship
between the physician and APRN and avoid miscommunications, the physician and APRN should identify any
situations in which consultation is expected and/or discussing the case with the physician would be beneficial.
Including this information in the protocols is not recommended.]
Medical Records [This section is optional]
The nurse practitioner/s is/are responsible for the complete, legible documentation of all patient
encounters that are consistent with state and federal laws. [Protocols may specify any format
required in that site, e.g. electronic format or SOAP. Also note that the Texas BON requires APRNs to
recognize themselves as RNs and the advanced practice role and specialty in which they are working when they
sign documentation; e.g. a family nurse practitioner would use the professional initials, “RN, FNP” after his
or her name. The APRN may also use any additional initials they desire denoting academic degrees or
certifications.]
Supervision & Documentation of Supervision
The nurse practitioner/s is/are authorized to diagnose and prescribe under the protocols
established in this document without the direct (on-site) supervision or approval of the
delegating or alternate physicians. Consultation with the delegating physician/s, or designated
alternate physicians, is available at all times on-site, by telephone, or by other electronic means
of communication when needed. Supervision shall be consistent with any requirement specified
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116
in Texas Medical Board Rule 193.6 for the practice site/s identified in this agreement. [The
protocols can specifically list the supervision activities to be conducted by the physician and they might be
combined with the section below, “Evaluation of Clinical Care.” If the physician is not on site the majority of
the time, TMB rules require that a permanent record is kept that includes the names or identification numbers
of patients discussed during daily status reports, the dates (times should also be noted in an alternate practice
site since the amount of time the physician is on site must be verifiable) when the physician is on site, and a
summary of what the physician did while on site. The summary shall include a description of the quality
assurance activities conducted and the names of any patients seen or whose case histories were reviewed with
the NP. The physician must sign the log at the conclusion of each site visit. Any waiver of site or supervisory
requirements, granted by the TMB under §193.6(i), should be noted. (See “Explanatory Notes” for more
information on waivers.)]
[When the delegating physician is unavailable because of out of town travel or incapacity, an alternate
physician must sign a permanent record that specifies the dates during which the alternate physician assumed
consultation and supervision responsibilities for the delegating physician. [See sample form #1 included at the
end of this document.]
Evaluation of Clinical Care [This could also be titled Quality Assurance and
Improvement]
Evaluation of the nurse practitioner/s will be provided in the following ways:
[Chart review of prescriptive authority by the supervising physician/s is the most common form of evaluation
and is required in medically underserved and alternate sites. This is not required for NPs in a physician’s
primary practice site, hospitals, or long term care sites. A minimum of 10% chart review is required once every
10 business days for medically underserved (MU) and monthly for alternate sites. In addition, TMB rules
require that a written quality assurance plan be maintained on MU sites, and a more general provision in rule
requires a QA plan for all sites. As discussed previously, in any site where the physician is not on site the
majority of the time, a log or written summary of physician consultation and supervisory activities must also be
maintained in those sites. (See sample form #2 included at the end of this document.)
Other quality assurance activities might include:
annual or more frequent periodic evaluation by the delegating physician,
periodic peer review,
informal evaluation during consultations and case review, and/or
periodic chart audits by a Quality Assurance Committee.]
Education, Training, Certification, Licensure & Authorization to Practice [This section is
optional, but these are the legal requirements an APRN must meet, and documentation should be maintained
in the APRN’s file.]
The nurse practitioner/s must possess a valid, unencumbered license as a Registered Nurse
from Texas or practicing on a multistate privilege from a Nurse Licensure Compact state. In
addition, the NP must have documentation from the Texas Board of Nursing authorizing
advanced nursing practice in a role and population focus appropriate to the patients the APRN
sees at this site. If prescriptive authority is delegated, the NP must also have a valid prescriptive
authority number from the BON. If prescriptive authority for controlled substances is delegated,
the NP must also have a current Texas Department of Public Safety Controlled Substances
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117
Permit and a DEA certificate. Copies of these records must be maintained in the NP’s personnel
file.
To maintain BON authorization, APRNs must have at least 20 hours of continuing education
applicable to their advanced practice role and population focus every two years and maintain
national certification, if national certification was a criterion the BON used for originally granting
authority to practice as an APRN (required for almost all APRNs graduating on or after January
1, 1996 and all APRNs graduating after January 1, 2010). To maintain prescriptive authority, the
APRN must have an additional 5 hours of CE in pharmacotherapeutics that is applicable to the
advanced practice role and population focus. APRN authorization and prescriptive authority are
renewed every two years at the same time the RN license is renewed.]
[In addition, evidence of any education, continuing education, training or certifications specifically required for
this position should be maintained. As discussed above, evidence of training for specific medical procedures, not
included in most advanced practice education for that role and specialty, should also be maintained.]
[As of December 31, 2004, APRNs must verify that delegating and alternate physicians possess an unrestricted
Texas license. This information may be verified on the Medical Board Website. To access, accept the terms,
enter the physician’s information, then click on the physician’s name for complete information. It is also
recommended the physicians check that the APRNs to whom they delegate prescriptive authority have a
current and unrestricted license, APRN authorization and prescriptive authority from the BON. See
https://www.BON.state.tx.us/olv/olverif.htm.]
Treatment Guidelines [This section is not required. Practice guidelines or protocols do not have to
identify the exact steps an advanced practice registered nurse must take to treat a patient, and the guidelines
should promote the exercise of professional judgment consistent with the education and experience of the
APRN. Specific protocol books or treatment protocols are not recommended by risk managers and they must be
updated very frequently. If these sources are identified, options should be included as in the example below.
Treatment protocols developed specifically by this practice should be included, or referred to in this agreement,
when the APRN treats more acutely ill patients or whenever the physician or APRN thinks it is indicated.
Remember that the NP is legally held to the specified treatment that is included in any referenced guideline so
they should not be referenced unless they are strictly followed. The following is an example of wording when
treatment references are used.]
[The nurse practitioner/s is/are authorized to diagnose and treat medical conditions under the
following current guidelines including, but not limited to:





Current edition of medical references available on-site at the respective clinics,
OSHA guidelines,
CDC or APA guidelines for immunizations, and
Clinical guidelines book of choice.
References for prescriptions will be the current Physician's Desk Reference and/or the
Nurse Practitioner/Physician Monthly or Quarterly Prescribing Guide. Additionally, there
may be limitations placed on prescriptions to an approved drug list under Medicaid or
other health plans or health care networks.]
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Collaborating Parties’ Statement of Approval. [This portion should be printed as a separate page
and could appear in many different formats to suit the needs of the practice. If no revisions are necessary, then
a new signature page may be signed and dated annually as required by law. If none of the parties involved in
signing the affirmation have changed, then simply add a new approval date and have the parties initial that
date. When there is a change in law and/or the authority to be delegated, the protocols must be updated more
frequently. All parties involved in executing the protocol must sign the protocol. The signature indicates the
parties have read the protocol and agree to fulfill the duties cited in the document.]
We, the undersigned, agree to the terms of this Collaborative Practice Agreement as set forth in
this document.
_____________________________ Delegating Physician
_____________________________ Nurse Practitioner
_____________________________ Nurse Practitioner
_____________________________ Alternate Physician
_____________________________ Alternate Physician
Approval Date _____________
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Explanatory Notes on Prescriptive Authority for APRNs
(For information only and not to be included in the Practice Agreement Protocol)
Prescriptive authority for APRNs in Texas must be delegated by a physician and is limited to
sites that meet certain qualifications. The physician supervisory requirements vary, based on
the type of site. The requirements for each site are in the TSBME rules, §193.6 (See references
at the end of this section). The laws and rules on prescriptive authority for APRNs and PAs in
Texas are identical.
Liability
Physicians who delegate prescriptive authority accept professional responsibility for general
supervision of the prescribing practices of the APRN. However, there is an exemption from
liability in the Medical Practice Act and in the TSBME Rules, §193.6 (m), of which delegating
physicians should be aware. It reads as follows:
(m) Liability. A physician shall not be liable for the act or acts of a physician assistant or
advanced practice registered nurse solely on the basis of having signed an order, a
standing medical order, a standing delegation order, or other order or protocols
authorizing a physician assistant or advanced practice nurse to perform the act or acts
of administering, providing, carrying out, or signing a prescription drug order unless the
physician has reason to believe the physician assistant or advanced practice nurse
lacked the competency to perform the act or acts.
Prescription Form
Prescription forms used by APRNs must meet the same requirements as those completed by
physicians and other prescribing practitioners. In addition, the form must also include the
APRN’s name, prescriptive authority number and, if the prescription is for a controlled
substance, DEA number. The clinic’s name, address and telephone number must also be
included. The form must also contain the delegating physician’s name and, if the prescription is
for a controlled substance, the physician’s DEA #. If there is more than one physician, the
APRN must indicate who is delegating the prescriptive authority, and or supervising at the time
the prescription is written. [Board of Pharmacy Rule §291.31(7)] The form may also contain a
reminder statement, "A generically equivalent drug product may be dispensed unless the
practitioner hand writes the words 'Brand Necessary' or 'Brand Medically Necessary' on the face
of the prescription." (22 TAC §309.3)
Generic Substitution
Under Texas State Board of Pharmacy (TSBP) rules on generic substitution (22 TAC §309.3),
the pharmacist may dispense a generically equivalent drug unless the practitioner writes the
dispensing directive, “brand necessary” or “brand medically necessary” on the face of the
prescription in the practitioner’s handwriting. If the prescription is communicated verbally or
electronically, a written version of the prescription that contains the dispensing directive
prohibiting generic substitution must be faxed or mailed to the pharmacy within 30 days.
Signing the Prescription
APRNs must identify themselves and sign their names on documentation in accordance with
BON rules. The professional initials must include RN and the APRNs’ role and specialty under
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120
which the APRN is prescribing the medication. For example: An APRN is a family nurse
practitioner and a psychiatric-mental health clinical nurse specialist, and prescribes an antibiotic
for a child with an ear infection; the APRN would sign, Jane Doe, RN, FNP. She may also
identify herself as a PHM-CNS, but the BON does not require her to do so. Advanced practice
registered nurses are not permitted to use APRN as a title after their names or to simply sign,
Jane Doe, APRN or Jane Doe, NP.
Relationships with Pharmacists
Occasionally a pharmacist questions a prescription written by an APRN. When APRNs enter a
practice, it is helpful to write a letter to area pharmacies and introduce the fact that the APRN
will be writing prescriptions. If pharmacists have questions, you can refer them to the Q&A in
the Pharmacy Law Book on Filling Prescriptions written by APRNs or PAs. You may wish to point
out that some of the information in the article, originally published in the Texas State Board of
Pharmacy (TSBP) Newsletter in 1995 and republished in 1998, is out of date. Physicians may
also now delegate authority to prescribe Controlled Substances, Schedules III-V. The sample
prescriptions in this article are also inconsistent with current TSBP rules. You may view the text
of this Q&A at http://www.cnaptexas.org/prescriptive_priv/articles/faqs1.html.
Calling Prescriptions to the Pharmacy for APRNs
Current law does not allow APRNs to designate persons to call in prescriptions written by the
APRN. However, law does permit physicians to designate LVNs, RNs or individuals with
education or experience equivalent to an LVN, to call in prescriptions for the APRN. The
statement in the model practice agreement/protocols on page 3 under the section entitled,
“Delegation of Prescriptive Authority & Other Medical Acts” will meet this requirement.
People often wonder who might qualify as a person having education or training equivalent to a
LVN. There is no definition that more clearly identifies such persons, so it is up to the discretion
of the physician and the APRN. This might be a person who completed one year of a RN
education program successfully, but never completed the program. Also, a medical assistant
with many years of experience calling prescriptions to the pharmacy for the physician, or a
certified medication aid in a long term care facility might have enough training and experience
to meet the requirement.
The Difference between Ordering and Prescribing
According to the Texas State Board of Pharmacy a "medication order" means an order from a
practitioner for administering a drug or medical device. In this case the pharmacist distributes
the drug or device from an inpatient/institutional pharmacy (Class C pharmacy) to a different
area or department of a licensed hospital for administration to a patient. Technically an APRN
writing a medication order is not exercising prescriptive authority, and therefore most CRNAs
and other APRNs working exclusively in licensed hospitals do not need prescriptive authority to
order drugs for their patients. They only require prescriptive authority if they write a
prescription for a patient that will be filled at an outpatient pharmacy after discharge.
"Prescription drug order" means an order from a practitioner to a pharmacist for a drug or
device to be dispensed to the public. This refers to dispensing drugs from an outpatient
pharmacy and applies to retail pharmacies (Class A). In the case of long-term care facilities, the
medications are dispensed from an outpatient pharmacy, and therefore the orders for
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medication and medical devices are actually “prescription drug orders” rather than “medication
orders.”
Applying to TMB to Waive Site and/or Supervisory Requirements
In 2001, a provision was included in SB 1131 that allows the Texas Medical Board to waive
certain site-based or physician supervisory requirements in order for a physician to delegate
prescriptive authority. §193.6(i) describes the procedure to request a waiver and the conditions
that must be met in order to have a waiver granted. SB 532, enacted on September 1, 2009,
gives the TMB additional authority to grant waivers to increase the number of APRNs or PAs
whom a physician may delegate prescriptive authority to 6 full time equivalents if the sight
offers services of limited type and duration. The waiver application is on the TMB Website. The
request must come from the physician, but CNAP is happy to offer assistance in preparing a
waiver request that will allow an APRN to have prescriptive authority. Send your questions or a
draft of your waiver request to Lynda Woolbert at [email protected].
The Number of APRNs to Whom a Physician May Delegate Prescriptive Authority
From September 1, 2009, forward, physicians can delegate prescriptive authority to 4 full time
equivalent APRNs and/or PAs in primary practice, alternate and long-term care facility-based
practices. There continues to be no limit on the number of APRNs to whom one physician can
delegate prescriptive authority in medically underserved sites or in hospital facility-based sites.
However, a physicians delegating in medically underserved sites may delegate at no more than
3 medically underserved sites that operate a total of 150 hours per week. Physicians delegating
in a hospital facility site may only delegate at one hospital.
There is no limit on the number of physicians that can delegate prescriptive authority to an
APRN. However, in a group practice, the TMB generally expresses a preference that only one
physician be the primary delegating physician. Other physicians in the practice that wish to
work with the APRN, or will occasionally supervise prescriptive authority in the absence of the
delegating physician, should sign the protocol as alternate delegating physicians.
Determining if a Site Qualifies for a Physician to Delegate Prescriptive Authority
Determining if a physician is permitted to delegate prescriptive authority in a particular site and
what supervision the physician must provide in order to meet the legal requirements for that
site always requires a review of the Texas Medical Board Rules. One particular site may be an
obvious fit based on the rules. However, if that is not the case, contact Lynda Woolbert for
assistance ([email protected]).
Determining if a site qualifies as serving a medically underserved population, requires additional
research. This can usually be accomplished by referring to the Department of State Health
Services’ Website, http://www.dshs.state.tx.us/chs/hprc/. The site includes a listing of whole
counties and census tracts that are designated as Medically Underserved Areas, and whole and
partial counties that are designated as Health Profession Shortage Areas (including Mental
Health HPSA that would apply to the practice of Psych-Mental Health APRNs). All these
designations automatically qualify the site as serving a medically underserved population. The
above DSHS Website also includes information on applying to have a site designated as
medically underserved because it serves a high proportion of clients whose health care is
publicly funded.
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Resources
TMB Rules may be accessed at http://www.tmb.state.tx.us/rules/rules/193.php.
 For the definition of the practice sites and the corresponding physician supervision
requirements for each site, see the following references:
Delegation at medically underserved sites, §193.6(b)
Delegation at primary practice sites, §193.6(c)
Delegation at an alternate practice site, §193.6(d)
Delegation at a facility-based practice, §193.6(e)
 Rules require documentation of physician supervision at any site where the physician is
not present with the APRN the majority of the time. See §193.6(f)
 For rules on alternate physicians, see §193.6(g)
 For rules and procedure to seek a waiver of a site or supervisory requirement, see
§193.6(i).
For information on prescriptive authority, scope of practice, regulation, answers to many
common questions regarding APRN practice in Texas, or to ask Lynda Woolbert a question, see
www.cnaptexas.org.
BON Rules for APRNs and other helpful information is available on the BON Website. See
“Advanced Practice Information”.
To verify RN licensure, APRN recognition, and whether that APRN holds a
prescriptive authority number, see http://www.bon.state.tx.us/olv/verification.htmlTo verify
physician licensure, see http://reg.tmb.state.tx.us/OnLineVerif/Phys_NoticeVerif.asp?
Position Statements by the Board of Nursing, including positions on RNs accepting orders
from APRNs, PAs, and pharmacists, and on RN and APRNs performing delegated acts see
http://www.bon.state.tx.us/about/publications.html.
To Determine if a Site is Medically Underserved and Applying for HPSA, MUA or MUP
Designation: To find if a site is in a designated Health Professional Shortage Area (HPSA) or
Medically Underserved Area (MUA), check the Health Professions Resource Center Website.
Then click on the applicable category under “Federal & State Shortage Designations & Benefits”
in the left column.
Resources on appropriate assessment and prescribing for pain management,
recognizing drug seeking behaviors is available on the Texas State Board of Pharmacy
Website at http://www.tsbp.state.tx.us/sb144.htm.
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Form #1: Record of Alternate Physician Supervision for Delegated Prescriptive Authority
APRN’s Name ____________________________ License #_________ Rx# ________
Delegating Physician’s Name__________________________ License #__________
Dates of Supervision by an Alternate Physician
Begin
End
Signature of Alternate Physician
License #
___/___/___
___/___/____
________________________________________
__________
___/___/___
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By signing this log sheet, I affirm that I served as the alternate physician for the purposes of supervising
prescriptive authority of this APRN for the dates specified. I am familiar with the protocols and/or
standing delegation orders in use at this site. I acknowledge my responsibility to consult with and
supervise this advanced practice registered nurse pursuant to those protocols and/or standing delegation
orders and fulfill the requirements for adequate supervision under § 193.6 of the Texas Medical Board
Rules.
A Guide for APRN Practice in Texas
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Form #2: Record of Physician Supervision [for sites where the physician is not on site the majority of the time] [This form should be modified
to reflect any other QA activities that are conducted or attach additional documentation to reflect other QA such as peer review.]
Date
Patient Name or Chart Number
Consult /
Status Report
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Reviewed
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Reviewed
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Physician Signature_____________________________
A Guide for APRN Practice in Texas
Date of Onsite Visit: ____/____/____
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Beginning Time: _________ End Time: ________
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Form #3: Distribution Record for Drug Samples
Date
Distributed
Patient’s Name
A Guide for APRN Practice in Texas
Drug
Lot #
Strength
Directions for Use
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Form #4: Record of Delegation of Prescriptive Authority and Protocol Review
APRN’s Name
Name and address of Site
(if different than physician’s)
Delegating Physician: ____________________________
Type of Site
Designation
Dates of Delegation
Type of APRN [e.g. FNP]
Initiated:
RN License # _________
APRN Rx # ________
Terminated:
DEA # _________
Dates of Protocol
Review/Renewal
APRN’s Name
Name and address of Site
(if different than physician’s)
Type of Site
Designation
Dates of Delegation
Type of APRN [e.g. FNP]
Initiated:
RN License # _________
APRN Rx # ________
Terminated:
DEA # _________
Dates of Protocol
Review/Renewal
A Guide for APRN Practice in Texas
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[Download the most current version at www.tmb.state.tx.us/professionals/np/pdwreqs.php]
Prescriptive Delegation Waiver Requests
Texas Medical Board
P. O. Box 2029, MC-242
Austin, Texas 78768-2029
(512) 305-7030
Important Information
The board’s rules state that the board may grant a waiver only if the board determines good
cause exists to grant a waiver. When considering a modification/waiver request, the board takes
into account many factors, including:


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Whether the requestor’s patient population or the patient population in general will be
better served by approving the modification/waiver request;
Whether the existing prescriptive delegation requirements cause an undue burden, not
only to the requestor, but to the patient population in the practice area for which the
modification/waiver request is made, without corresponding benefit to patient care;
If the requirement for which the modification/waiver is sought is the amount of time the
physician is on-site, whether the frequency and duration of time the physician is on-site
when the advanced practice registered nurse or physician assistant is present is
sufficient for collaboration to occur, taking into consideration the other ways the physician
collaborates with the advanced practice registered nurse or physician assistant at other
sites;
The quality and viability of safeguards that are proposed to ensure continued quality of
patient care under the requested modification/waiver;
The quality and viability of safeguards that are proposed to foster, and to maintain, a
collaborative practice between the physician and the physician assistant or advanced
practice registered nurse under the proposed modification/waiver; and,
The requestor’s type of primary practice and the type of practice conducted at the site for
which a waiver is requested, including the populations served by the practices and duties
assigned to mid-level practitioners.
Notes



The limitation on the number of APRN’s or PA’s cannot be waived.
The limitation on the number of primary or alternate sites cannot be waived.
Only physicians may submit prescriptive delegation waiver requests
Process

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Complete the application on the following pages.
All sections of the form must be complete to be considered.
Submit the application by email to [email protected] as an attachment.
All applications will be placed on the Texas Medical Board website for public commentary
for a minimum of 30 days before a determination is made.
Only e-mail addresses will be redacted when the forms go up on the TMB website.
Your request may be referred to a committee of the board for a determination.
Board Rules and Statutes may be accessed at our website www.tmb.state.tx.us. Section 193.6 of
the Board Rules covers the delegation of prescriptive authority. Sections 157.051- 157.0542 of the
Texas Occupations Code are the corresponding statutory provisions. An excerpt of Board Rule
193.6 is attached at the end of this application.
If you have questions about the waiver process, please email [email protected] or call (512)
305-7030.
128
Prescriptive Delegation Waiver Application
Delegating Physician Name (Last, first)
Telephone Number:
Texas License Number:
Email Address: __________________________________________________________
Address of site for which Waiver is requested:
City
State
Zip Code
1. Describe your primary practice, and the practice for which you’re requesting a
modification/waiver, if different. Include details of the populations served by the practices,
duties assigned to mid-level practitioners that you supervise, and any other practice
details relevant to the modification/waiver request.
2. Indicate the prescriptive delegation requirement(s) for which you are requesting
modification/waiver.
a. Chart Reviews (applicable to medically underserved are sites and alternate practice
sites)
i.
Medically Underserved Area Site Requirement: Delegating physician conducts
random review and countersigns of at least 10% of the patient charts at the site
as one step in verifying that patient care is provided by the clinic in accordance
with a written quality assurance plan on file at the clinic. Check the box next to
the type of your request.
Waiver
Modification
Describe your proposed chart review process, including the percent of charts to
be reviewed; who would be responsible for chart reviews; where the chart
reviews would occur; and, what other steps you would take to confirm care is
provided according to the quality assurance plan.
129
a. Chart Reviews, continued
ii.
Alternate Practice Site Requirement: Delegating physician reviews at least 10
percent of the medical charts at the site. Check the box next to the type of your
request.
Waiver
Modification
Describe your proposed chart review process, including the percent of charts to
be reviewed; who would be responsible for chart reviews; where the chart
reviews would occur; and, what other steps you would take to ensure quality
patient care given the waiver or reduction in chart reviews.
b. Distance From Primary Practice Site (applicable only to alternate practice sites)
Alternate Practice Site Requirement: Alternate site is located within 60 miles of the
delegating physician’s primary practice site. Check the box next to the type of your
request.
Waiver
Modification
Describe the modification, if applicable, and describe the safeguards to be put in
place that mitigate the risks of the alternate practice site being more than 60 miles
from the primary practice site.
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c.
Site Visits (applicable to all site types)
For each waiver or modification request regarding site visits, describe the proposed
site visit plan. Include the frequency and duration of site visits. If the request is to
waive all site visits, explain why they are not needed. Be sure to describe how the
frequency and duration of time the physician is on-site when the advanced practice
registered nurse or physician assistant is present is sufficient for collaboration to
occur, taking into consideration the other ways the physician collaborates with the
advanced practice registered nurse or physician assistant at other sites.
i.
Alternate Practice Site Requirement: On-site at least 20% of the time. Check the
box next to the type of your request.
Waiver
Modification
If modification, please describe:
ii.
Medically Underserved Area Site Requirement: On-site at least once every 10
business days during which the advanced practice registered nurse or physician
assistant is on-site providing care in order to observe and provide medical
direction and consultation by reviewing with the physician assistant or advanced
practice registered nurse the case histories of patients with problems or
complications encountered, personally diagnosing or treating patients requiring
physician follow-up, and verifying that patient care is provided by the clinic in
accordance with a written quality assurance plan on file at the clinic. Check the
box next to the type of your request.
Waiver
Modification
If modification, please describe:
131
c. Site Visits, continued
iii.
Facility-Based and Primary Practice Site Requirements: Continuous supervision,
but the constant physical presence of the physician is not required. Check the
box next to the type of your request.
Waiver
Modification
If modification, please describe:
d. Other (not Chart Reviews, Distance from Primary Practice Site, or Site Visits)
For which site or sites is your request?
Primary Practice Site
Alternate Practice Site
Facility Based Site
Medically Underserved Area Site
Cite the specific requirement as listed in rule for which you are requesting
modification/waiver. See Board Rule 193.6 at www.tmb.state.tx.us.
Check the box next to the type of your request.
Waiver
Modification
If modification, please describe:
132
3. Explain how the prescriptive delegation requirements cause an undue burden to patients
in the practice area and/or to the physician without corresponding benefit to patient care.
4. Describe the safeguards that exist for ensuring quality patient care under the proposed
modification/waiver.
5. Describe the safeguards that exist for fostering a collaborative practice between the
physician and the physician assistant or advanced practice registered nurse under the
proposed modification/waiver.
I, (insert name here), certify that I am the person herein named subscribing to this
application; that I have read the complete application; that I know the full content thereof; that I
am the lawful holder of a license to practice medicine in the state of Texas; that all of the
information contained herein and evidence or other credentials submitted herewith are true and
correct; and, that I understand that submission of a false statement will be found to be a violation
of the Medical Practice Act and Board rules. Furthermore, I am aware that this application will be
made available for public commentary on the Texas Medical Board website. I have not included
confidential information in my request.
____________________________________________ ______________________
Signature
Date
133
Chapter 5
Practice Issues for NPs and CNSs
Key Points

The traditional CNS role focuses on improving nursing care for a population of
patients.

About 20% of CNSs also engage in treatment for individual patients and have
prescriptive authority.

All CNSs that use any title or credential (including certification) implying he/she is a
clinical nurse specialist must have authorization to practice as a CNS from the Texas
Board of Nursing (BON).

The NP role focuses on managing treatment for individual patients within a specific
population of patients.

NPs with certificate education are grandfathered and not required to obtain a master’s
degree unless they fail to maintain their national certification and BON authorization.

Role analysis of two CNS and NP population-focus areas show identical functions.
Psychiatric Mental Health CNSs and NPs and Gerontological CNSs and NPs may be
hired for the same jobs.

NPs and CNSs in psychiatric mental health nursing may independently diagnose from
the DSM Manual.

The scope of practice for CNSs and NPs is based on the population of patients the
APRN was educated to treat in the advanced practice nursing program, and cannot be
expanded beyond that population of patients without additional advanced practice
nursing education.

The limits of an individual APRN's practice are based on the APRN's competencies.

In Texas, APRNs who establish medical diagnoses and prescribe medications or
medical devices for patients must have those aspects of their practices delegated by a
physician through protocols (Practice Agreement Protocol).

NPs and CNSs educated in primary care may care for certain hospitalized patients
that are not critically ill.

APRNs may perform certain first assisting and radiologic procedures, but only if they
have additional training required by law.

APRNs may delegate administration of immunizations to unlicensed personnel, but
they may not delegate administration of prescription drugs to unlicensed persons.

A BON position statement verifies that LVNs and RNs may accept orders from
APRNs.
It is in APRNs’ scope of practice to order health care services including physical
therapy, occupational therapy, diagnostic tests, and durable medical equipment.
However, the Texas Medicaid Program requires a physician order for these services.


NPs and CNSs may not certify a terminal illness, but may act as the attending
practitioner if the hospice patient selects the NP to act in that capacity.
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
APRNs may not order home health services provided by Medicare-certified agencies,
but may oversee the plan of care for Medicare patients.

Licensed home care agencies that are not Medicare-certified may accept orders from
APRNs.

Medicaid's Primary Home Care Program allows APRNs to establish the plan of care
and order services.

APRNs may not order prosthetic or orthotic services.

APRNs specializing in family, adult or gerontological nursing may perform
assessments and certify medical necessity for an emergency protective order for an
adult or disabled individual.

APRNs may declare death (as can any RN) but only a physician may sign a death
certificate.

APRNs may sign University Interscholastic League forms verifying a student's fitness
to participate in sports activities.

APRNs may perform physical exams for school bus drivers and other commercial
drivers. However, they may not perform and sign physical exams for pilots.

APRNs may sign Texas Works 1836 forms verifying that a client's ability to work is
limited due to disability or the need to care for a close family member.

APRNs may perform assessments and treat injured workers covered by Texas
Workers' Compensation (TWC) Insurance, but only if their collaborating physician is a
"treating doctor." APRNs may sign (TWC) forms on behalf of the treating physician.

APRNs working in nursing and skilled nursing facilities have to meet CMS
requirements in making patient visits.

APRNs should protect their rights in any employment or contract for services that they
sign. The APRN should be represented by an attorney that is familiar with APRN
practice issues and the APRN should research additional sources to determine elements
that are important to include.

Non-physicians may not employ physicians. There is an exception for certain health
care organizations certified by the Texas Medical Board.

Physicians may not jointly own a practice with an APRN.

In advertising their services to the public, APRNs must avoid any reference to
“medicine” or a “medical practice.”
Introduction
In the normal course of practice for nurse practitioners and clinical nurse specialists,
many questions arise. Even APRNs that have a good understanding of the basic
information about advanced nursing practice need more information about specific
aspects of practice.
This chapter addresses many of these issues, and answers specific questions that nurse
practitioners (NPs) and clinical nurse specialists (CNSs) often ask. This chapter
combines practice issues for NPs and CNSs. While there are certainly differences
between the NP and CNS roles that are discussed below, most answers to practice
questions are the same. Any differences that exist are noted.
135
5.1 The CNS and NP Roles
Often NPs and CNSs ask about the differences between the CNS and NP roles. In about
20% of cases, it is difficult to tell the difference because both the CNS and NP have
prescriptive authority and manage treatment for an individual patient that is beyond the
RN scope. However, about 80% of CNSs still work within the traditional CNS role and
focus on improving nursing care for a particular population of patients.
Clinical Nurse Specialists (CNSs)
The first clinical nurse specialist program started in 1954 to improve the nursing care of
patients. CNSs are educated to be the clinical nursing experts in a specialty and
have always been educated at the master and doctoral levels. CNS specialties are
typically identified in terms of one of the following factors.
 Population (e.g. adult health, pediatrics, geritological, women's health)
 Type of problem (e.g. pain, wound management, stress)
 Setting (e.g. critical care unit, emergency department, community clinic)
 Type of care (e.g. rehabilitation, palliative)
 Disease/pathology/medical specialty (e.g. diabetes, oncology, psychiatry)
The traditional CNS role does not involve medical aspects of care, but focuses on
improving nursing care through assessment, consultation, research and teaching. CNSs
analyze systems to obtain optimal results.
The CNS role is enjoying resurgence as the emphasis on improving patient outcomes
and cost containment increases. CNSs have proven to contain costs by shortening
hospital lengths of stay, reducing unnecessary costs and procedures, promoting
evidence-based care, improving systems to support better and more efficient care, and
improving and standardizing the quality of care.42
An increasing number of CNSs are also educated to diagnose, treat, and prescribe for
patients within their specialty. CNSs that have prescriptive authority have always
been required to take courses in advanced physical/health assessment,
pharmacotherapeutics, pathophysiology (or psychopathology for Psychiatric-Mental
Health CNSs), and diagnosis & management. These are the same courses required for
nurse practitioners. Since 1998, the BON required all CNSs to complete courses in
advanced physical/health assessment, pharmacotherapeutics, and pathophysiology or
psychopathology.
When analyzing the job duties of a particular CNS, one must consider the differences
between CNSs who are prepared to work in an expanded nursing role, and those who
are also authorized to participate in medical management for patients and prescribe and
order medications. The easiest way to differentiate is to determine if the CNS has a
prescriptive authority number issued by the BON. While not all CNSs that have the
necessary education to prescribe, do so, and therefore have a prescriptive authority
number, those that have the number definitely have had the education necessary to
diagnose and prescribe for paitents in the CNS’s population-focus area.
If a CNS has not had the required courses to obtain a prescriptive authority number, but
wishes to obtain the authority to prescribe, the CNS can take courses in
pathophysiology, pharmacotherapeutics, and physical assessment at any university
offering CNS courses. The required diagnosis and management course may be more
136
difficult to find. CNSs seeking this course should refer to the BON's “CNS Diagnosis and
Management Course Guidelines.” 43
Education and Standards for CNS Practice
The National Association of Clinical Nurse Specialists (NACNS) has a document posted
on its website that clearly delineates the expected competencies for CNSs. The 2008
document titled, “Organizing Framework and CNS Core Cometencies” is the product of
the National CNS Competency Task Force.44 The “NACNS Position Statement on
Advanced Pharmacology: Practice, Curricular and Regulatory Recommendations”
further informs readers about the CNS scope of practice. Several additional documents
are available for purchase through the website, including the NACNS 2004 Statement
on CNS Practice and Education, The Clinical Nurse Specialist Handbook, 2nd Edition,
and Clinical Nurse Specialist Toolkit: A Guide for the New Clinical Nurse Specialist.
The American Nurses Association also defines the scope and standards of practice for
CNSs and other APRNs in their 2004 publication, Nursing: Scope and Standards of
Practice. That document may also be ordered online through www.nursingworld.org.
Must all CNS Graduates Seek APRN Authorization from the BON?
Some CNSs that choose to work in a traditional CNS role are not sure if they should
bother to go through the process of being authorized as a clinical nurse specialist by the
BON. The authorization carries with it ongoing requirements for practice in a CNS role
and national certification. Since the job they want falls totally within the RN scope of
practice, they think APRN recognition is unnecessary.
CNS graduates facing this dilemma should consider the following fact. If a CNS graduate
does not obtain authorization to work in the CNS role and specialty, that nurse cannot
claim to be, or use any title indicating that the nurse is a CNS when working in a clinical
role. This prohibition includes using national certification titles that indicate advanced
practice status, such as ACNS-BC even though the graduate might be certified by ANCC
as an Adult CNS). Of course the graduate could use his/her master’s or doctoral degree
as a credential.
Not being recognized as a CNS by the BON can make it more difficult to find a job
advertised for clinical nurse specialists. As a candidate for such a job, the graduate from
a CNS program would have to explain that while the person meets the educational
requirement for the job, and may even meet the certification requirement, they are not
recognized as a CNS by the BON, and therefore could not use that title in connection
with this position.
Nurse Practitioners
In 1965, the nurse practitioner role began as a way to address the physician shortage
and create cost-efficient, easily accessible primary care in rural and underserved areas.
Therefore, one of the hallmarks of the NP role is participating in the medical
management of a specific population of patients.
Nurse practitioner education began as certificate programs but evolved over the years
and now all programs in Texas are at the master’s level. Except for women's health,
national certification bodies have required a master’s degree as minimum education to
sit for the certification exam for several years. Since 2005, NCC, the national certifying
body for women’s health care nurse practitioners, required a master’s degree. As of
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January 1, 2003, the BON requires all applicants for APRN authorization to complete a
master’s degree in nursing.
Those who were working as nurse practitioners prior to requirements for a master’s
degree have been "grandfathered." They remain authorized to practice as a NP as long
as they maintain all continuing education, practice and certification requirements.
Grandfathered NPs should be particularly careful to renew their national certification with
their certification board, and their APRN license with the Texas BON on time. If an NP
fails to do so then often certification boards have new educational standards that no
longer allow NPs with certificate education to be certified. Without certification, the
APRN cannot renew their APRN authorization with the BON. Ultimately, failing to
maintain all the requirements leads to NPs having to stop practicing and complete a
master’s level NP program.
Many NPs with certificates already returned to school to become master prepared. It is
common to find NPs prepared in more than one population-focus area, and sometimes
authorized in more than one APRN role. It is particularly common for an APRN to be
both a CNS and NP.
Although the roots of NP practice are in primary care, one of the early NP roles was the
neonatal nurse practitioner. NNPs care for acutely ill and premature infants. The success
of NPs in neonatal ICUs sparked the use of NPs in other acute care settings. One of the
fastest growing NP specialties is acute care. These acute care nurse practitioners
(ACNPs) specialize in the medical aspects of caring for acutely ill patients. Their
education encompasses sophisticated technology and medical procedures. ACNPs
often serve in positions that are equivalent to house medical staff in ICUs and
throughout the hospital. ACNPs are limited to caring for acutely and critically ill adults
and Pediatric ACNPs, certified by the Pediatric Nurses Certification Board as CPNP-AC
(certified pediatric nurse practitioner-acute care) are limited to caring for acutely and
critically ill infants, children and adolescents.
While NPs' education encompasses medical aspects of care, the roots of NP practice
are clearly nursing. NP education emphasizes prevention, patient teaching and
partnering with patients, families, and other members of the health care team to achieve
optimum health outcomes. Just as for clinical nurse specialists, research consistently
demonstrates that NPs offer quality care that often leads to fewer complications that
avoids emergency room visits and hospitalizations. NPs working in hospitals have also
been shown to shorten hospital stays.
Education and Standards of Practice for NPs
Educational competencies for NPs in various population-focus areas are established by
the National Organization of Nurse Practitioner Faculties (NONPF), www.nonpf.com. In
March 2006, NONPF published Domains and Core Competencies of Nurse Practitioner
Practice. In addition, competencies for the following population-focused nurse
practitioner programs may be downloaded.

Acute Care Nurse Practitioner Competencies,
www.nonpf.org/ACNPcompsfinal20041.pdf
 Nurse Practitioner Primary Care Competencies in Specialty Areas: Adult, Family,
Gerontological, Pediatric, and Women's Health, www.nonpf.org/finalaug2002.pdf
 Psychiatric-Mental Health Nurse Practitioner Competencies,
www.nonpf.org/finalcomps03.pdf
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Educational standards for neonatal NPs are established by the National Association of
Neonatal Nurses. A comprehensive list of documents is available at
http://www.nann.org/edu_jobs/edu_nnp.html.
As discussed in Chapter 1, standards of practice for NP specialties are usually available
from the corresponding NP specialty organization (See Table 1.5). To establish
reasonable expectations of a nurse practitioner, review the American Academy of Nurse
Practitioners’ (AANP) Scope of Practice for Nurse Practitioners, Standards of Practice
for NPs, www.aanp.org, and other applicable position papers.45
For other information on scopes and standards of practice for some specific NP
population-focus areas, see the following links to professional organizations' statements.

American Psychiatric Nurses Association: Professional Titling and Credentialing for
Advanced Practice Registered Nurse-Psychiatric/ Mental Health (includes scope of
practice and competencies) and other applicable position statements
 Emergency Nurses Association: Scope of Practice for Nurse Practitioners in
Emergency Care
 National Association of Pediatric Nurse Practitioners: Scope and Standards of
Practice, NAPNAP Position Statement on Age Parameters for Pediatric Nurse
Practitioner Practice,46 NAPNAP Position Statement on The Acute Care Pediatric Nurse
Practitioner47 and other applicable position statements.
 Gerontological Advanced Practice Nurses Association: Clinical Practice of GNPs48
Determining if a Job Requires a CNS or NP
Employers are not always sure what type of APRN is most likely to be right for the job.
Therefore, APRNs need to be able to supply this information. As previously indicated,
there is overlap in the role that NPs and CNSs assume. NPs may be hired to meet some
patient care goals that are more commonly associated with the CNS role. A CNS with
prescriptive authority may be hired to manage medical aspects of care for individual
patients, a role more commonly assumed by NPs.
An employer that wants to hire an advanced practice registered nurse needs to carefully
consider its needs and determine if the job primarily calls for a CNS or NP. If medical
management is the major reason to hire an advanced practice registered nurse, except
in two specialties noted below, the employer usually needs an NP. If the employer really
needs a nurse who can improve nursing care and bring a team of interdisciplinary
providers together to work as a team, then a CNS is probably the right person for the
job.
Identical Services Provided by Certain NP and CNS Specialties
Role analysis of two NP and CNS Specialties show they provide the same services for
patients. NPs and CNSs specializing in psychiatric mental health (PMH) provide
essentially identical services. The same is true for NPs and CNSs who specialize in
geriatrics. Gerontological NPs and CNSs both are educated to manage medical aspects
care for patients that are age 50 and over.
Psychiatric Mental Health NPs & CNSs Independently Diagnose
The BON position statement 15.12, Use Of American Psychiatric Association Diagnoses
by LVNS, RNs, or APRNs, confirms that APRNs who specialize in psychiatric mental
health care may independently diagnose from the Diagnostic and Statistical Manual of
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Mental Disorders (DSM). The DSM is a diagnostic manual used by multiple disciplines,
and therefore is interpreted not to violate the provision in the Nursing Practice Act that
states professional nursing “does not include acts of medical diagnosis or the
prescription of therapeutic or corrective measures.”49
This position statement does not preclude other APRNs from establishing a diagnosis
from the DSM, as long as that diagnosis is within the scope of their practice and
competency. For instance, most PNPs are competent to diagnose and treat Attention
Deficit Hyperactivity Disorder and most FNPs are competent to diagnose and treat minor
depression.
This position statement is only intended to verify that PMH APRNs may establish a
diagnosis, consistent with criteria in the DSM, as an independent nursing function.
Therefore, the APRN does not have to establish a protocol with a physician for the
purpose of making such a diagnosis. However, a PMH APRN must establish a protocol
with a physician, just like any other APRN, in order to prescribe medications for those
patients.
5.2 Scope of Practice and Competence
While scope of practice is addressed in Chapter 1 (section 1.5), it is a topic of critical
importance and deserves further discussion. The majority of complaints and law suits
against APRNs, that result in a finding of fault against the APRN, stem from an APRN
exceeding his/her scope of competence. NPs and CNSs must recognize the boundaries
of their scope based on the fact that the APRN's education was limited to a particular
population of patients or specialty.
Determining if a Job or Assignment is in a CNS’s or NP’s Scope of Practice
It is not uncommon for a physician to try to delegate the care of certain patients that are
beyond the APRN's scope of practice. Since physicians' scope is unlimited and their
delegatory authority is extremely broad, physicians often fail to understand that other
licensed health care practitioners, such as CNSs and NPs, must function within the limits
of their license.
For instance, a family physician may try to hire a women's health nurse practitioner
(WHNP) and ask that she care for all the patients in the practice. The WHNP must
refuse. The WHNP may work with a family physician, but she may only care for women.
Most WHNPs that graduated recently are educated to do basic primary care for women,
as well as treat most women's health issues. Some WHNPs may also see men for
treatment of sexually transmitted diseases if they are educated to do so. However, this is
the extent of a WHNP's scope of practice and a WHNP may not do primary care for
children and men.
In another example, a NNP was told by a physician that she could work with him to treat
hospitalized children above the age of 2 years because he was delegating the care of
those patients to her and collaborating with her in caring for those patients. While it is
true that physicians are allowed to delegate any patient care activity they think the
individual is competent to perform, physicians do not understand that APRNs may not be
able to accept that delegation. APRNs are only authorized to manage medical aspects of
care within a certain scope, and practicing beyond the RN scope for other patients
violates the Nursing Practice Act.
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Aspects of NP and CNS Practice that Must Be Delegated by a Physician
Texas law requires that certain aspects of care provided by an APRN must be delegated
by a physician. This is generally interpreted to include making a medical diagnosis and
prescribing and ordering prescription drugs and medical devices. While diagnosing and
prescribing are in an APRN's professional scope of practice (otherwise the APRN could
not accept the physician's delegation), these acts are not performed independently in
Texas.
Diagnosis, prescribing and ordering prescription drugs are medical acts in the state of
Texas, and therefore require delegation. NPs and CNSs are required to have an
agreement of collaboration and delegation for medical aspects of care with one or more
physicians (legally identified as "protocols"). While delegating the ability to make a
medical diagnosis from the ICD Manual carries no particular supervisory requirement for
the physician, prescriptive authority (as described in detail in Chapter 4) does. For
APRNs, prescriptive authority is also accompanied by physician supervision based on
the type of practice site. Other aspects of care most APRNs provide are rendered under
the RN license and advanced practice authorization as nursing acts.
Must a Delegating Physician Have the Same Specialty as the NP or CNS?
As discussed in section 4.13, statutes and rules do not address the specialty of the
physician who may delegate prescriptive authority. Likewise, nothing in law limits APRNs
to working only with physicians whose specialties match the population-focus of the NP
or CNS. Regardless, it is important that NPs and CNSs establish practice agreements
with physicians whose specialties are logically related to the population of patients the
APRN is treating. The physician must be available for consultation and referral for
patients that are beyond the APRN's education and experience, and the physician
cannot serve that function unless the APRN's patients are also patients that the
physician would also see in his/her practice.
May Primary Care Educated APRNs Practice in Hospitals?
As an increasing number of NPs began being educated in acute or critical care,
questions surfaced about whether it is appropriate for an adult (ANP), family (FNP),
gerontological (GNP) and pediatric (PNP) nurse practitioners to care for patients in acute
care settings. This is rarely an issue for CNSs since most CNS education, with the
exception of community health, is not limited to ambulatory care settings.
There is an appropriate role in hospitals for many APRNs that are educated in primary
care specialties and the BON does not confine APRNs educated in primary care
specialties to ambulatory care practice settings. For instance, PNPs have always
worked in hospitals caring for newborns, premature infants that are being monitored
before discharge, or moderately ill infants and children. There are many patients that are
not in critical care units that may be appropriately treated by APRNs educated in primary
care specialties.
BON staff point out that the principles of treating high blood pressure or an exacerbation
of asthma in a hospital setting is the same as treating those conditions in a outpatient
setting. However, there are limitations on the role primary care educated NPs and CNSs
can play in critical care settings. It is recommended that only APRNs educated in acute
or critical care work in intensive care settings.
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Special Issues for PNPs in Acute Care Settings
There are PNPs who began working in pediatric critical care units before acute care
pediatric nurse practitioner (PNP-AC) courses existed. Some have had special training
courses provided by a medical school or hospital and still might qualify to work in these
settings within a limited role. However, at this point, the BON requires that all PNPs
involved in managing the overall medical care of critically ill and unstable
pediatric patients have formal acute care PNP education and be recognized by the
BON as an acute care pediatric nurse practitioner.
It is recommended that PNPs working in any job that might be beyond the normal
professional scope of practice maintain excellent documentation to demonstrate the
additional education, training, and/or experience in acute pediatric care and, just like any
other APRN, proof of competence in performing procedures that would be beyond the
scope of practice for most PNPs.
Some primary care educated PNPs working in acute care settings took advantage of the
two-year window of opportunity to become certified as an acute care PNP through the
Pediatric Nursing Certification Board (PNCB). However, PNPs who became certified in
acute care must not manage the medical care of patients in critical care settings or use
the CPNP-AC credential in their work unless they also have successfully completed an
acute care PNP program and have been authorized by the BON to practice as an acute
care PNP. In addition, PNPs choosing to be certified in acute care, but not yet
authorized in acute care, would also have to maintain their national certification as
primary care PNPs since that is the national certification that is associated with their
APRN authorization.50
Expanding the Scope to Include New Procedures & Patient Care Activities
This topic was briefly addressed at the end of Chapter 1, but deserves more explanation
since most APRNs will need to learn new procedures or skills at some point in their
careers. In 2005, the BON posted Guidelines for Determining Scope of Practice with
FAQs related to Scope of Practice on its website. Every APRN in Texas should be
familiar with the contents.
The frequently asked questions associated with the Scope of Practice Guidelines are
particularly informative. The final portion of the answer to the first question helps APRNs
understand the educational process required and documentation needed if becoming
competent in a new procedure or skill.
Guidelines for Determining Scope of Practice FAQ # 1 (in part)
It is important to remember that there is more to this issue than simply learning
how to perform a particular procedure. Patient selection criteria, underlying
physiology and/or pathophysiology (depending on the nature of the procedure),
as well as indications for and contraindications to the procedure are among the
many concepts that are fundamental to learning a new procedure. The APRN
must also learn to respond to and manage (as appropriate) untoward
events/adverse reactions/complications that may occur as a result of the
procedure. In many cases, on-the-job training will not include this type of content.
If you are ever required to defend your practice for any reason (whether to the
BON or any other entity), the defense will require providing evidence of
education/training and documentation of competence related to the specific
service you provided. As an advanced practice registered nurse you retain
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professional accountability for any advanced practice nursing services you
provide [Rule 221.13(e)]. 7
Each APRN who acquires new procedures and skills, including the knowledge to care
for patients in a subspecialty, should maintain a portfolio that includes their sources of
knowledge (e.g. books, articles and continuing education courses), as well as
documentation of the training and ongoing proof of competency.
5.3 APRN’s Use of Alternative & Complementary Therapies
In the previous section, the Board of Nursing gave general advice on expanding
practice. That advice is mirrored in the BON’s discussion of the more specific issue of
expanding practice to use complementary therapies. To the extent that treatment with
herbs and homeopathic treatments are integrated into the APRN educational program,
then the APRN could use those therapies without additional education. However, most
forms of complementary and alternative medicine will require more training.
Many NPs and CNSs incorporate complementary health care approaches into their
practices. Most therapies are within the RN scope of practice but others, such as
prescribing bio-identical hormone therapy, are clearly restricted to APRNs with
prescriptive authority. Regardless of the particular therapy, the Board of Nursing guides
RNs that choose to provide complementary care through its Position Statement 15.23.
The position statement lists rules that the nurse should specifically consider when
deciding whether the treatment would be consistent with good nursing care. The position
statement also lists items, including additional education, the nurse must document.
15.23 The RN’s Use of Complementary Modalties [in part]
…In order to show accountability when providing integrated or complementary
modalities as nursing interventions, the RN should be able to articulate and
provide evidence of:
1. Educational activities used to gain or maintain the knowledge and skills
needed for the safe and effective use of such modalities;
2. Knowledge of the anticipated effects of the complementary therapy and its
interactions with other modalities, including its physiological,
emotional/spiritual impact;
3. Selection of appropriate interventions, whether complementary, conventional,
or in combination, to meet the client’s needs. The interventions and rationale
for selection should be documented in the client’s nuring care plan. The
demonstrated ability of the RN to properly perform the chosen
interventions(s) should be maintained by the RN and /or his/her employer;
4. Instruction/education provided regarding the purpose of the selected
intervention, e.g., how it is performed, and its potential outcomes;
5. Collaboration with other health care professionals and applicable referrals
when necessary;
6. Documentation of interventions and client responses in a client’s record;
7. Development and /or maintenance of policies and procedures relative to
complementary modalities when used in organized health care settings;
8. Abstinence from making unsubstantiated claims about the therapy used; and
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9. Acknolegment that, as with conventional modalities, each person’s response
to the therapy will be unique.
The position statement also reminds nurses that the use of certain titles related to
alternative therapies may have their own educational and certification or licensure
requirements (e.g., massage therapist, acupuncturist). Therefore, nurses using some of
those treatments should avoid using any protected titles or imply they have a degree of
mastery above basic skills. The APRN must also be familiar with prevailing standards
published by national associations, credentialing bodies, and professional organizations
related to the RN’s area of practice.
Texas Medical Board Rules also inform APRNs on prevailing standards. TMB Rules
200.1 – 200.3 affirm the rights of patients to seek alternative care and for physicians to
provide that care as long as it has a reasonable potential for therapeutic gain that is
supported by scientific evidence. TMB Rule 200.3 is very specific in the assessment and
documentation that should be provided, as well as the information that patients should
receive.51
5.4 Certain Functions that Require Additional Training
An informal process to expand competency is not always adequate. Texas law requires
APRNs to complete specific training courses to perform certain functions. APRNs who
first assist at surgery or perform certain radiologic procedures must meet specific
requirements.
Requirements for NPs or CNSs to First Assist at Surgery
If any entity plans to bill for first assistant at surgery services performed by an NP or
CNS, that NP or CNS is required to complete a course in nurse first assisting (usually
referred to as a RNFA course). If there is no plan to bill for first assistant services, then
the NP or CNS, who has not completed a first assisting course, may perform these
services under the personal supervision of the surgeon.
Some APRNs think that the requirement to take a first assisting course does not apply to
them because of previous on-the-job experience and training. That is an inaccurate
assumption that invites possible disciplinary action by the BON.
Under the current Nursing Practice Act, RNs (including advanced practice registered
nurses) who elect to first assist must complete a RNFA educational program. That
requirement has been in the law since 2001. Since September 1, 2005, APRNs have
been exempt from the CNOR certification requirement. The text of the law essential to
understanding the requirements follows.
§ 301.354. NURSE FIRST ASSISTANTS; ASSISTING AT SURGERY BY OTHER
NURSES.
(a) In this section, "nurse first assistant" means a registered nurse who:
(1) has completed a nurse first assistant educational program approved
or recognized by an organization recognized by the board; and
(2) is either:
(A) certified in perioperative nursing by an organization recognized
by the board; or
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(B) recognized by the board as an advanced practice registered
nurse and qualified by education, training, or experience to perform the tasks
involved in perioperative nursing.
Some APRNs read the text of the above subsection and fail to understand that the
statement in paragraph (a)(2)(B) is part of a two part requirement for all nurse first
assistants (including advanced practice registered nurses). All nurse first assistants must
complete a nurse first assistant educational program [requirement (1)]. All nurse first
assistants must then meet one of the two requirements outlined in 301.354(a)(2): CNOR
certification OR recognition as an advanced practice registered nurse and qualified by
education, training or experience [requirement (2)].
Continuing education activities and experiences may meet the criteria for
training/experience outlined in Sec. 301.354(a)(2)(B), but that criterion must be met in
addition to completion of a nurse first assistant educational program approved or
recognized by an organization recognized by the board as required by Sec.
301.354(a)(1). The criterion stating that the nurse may be recognized as an advanced
practice registered nurse is in lieu of CNOR certification. It is not in lieu of completing a
nurse first assistant educational program.
Section 301.354, Occupations Code, also includes a provision that allows nurses to
assist under the direct personal supervision of and in the same sterile field as the
physician. APRNs and other nurses may first assist under this provision but neither the
APRN or any other entity are eligible to bill for the first assisting services provided under
those circumstances.
BON Rule 217.18 further specifies that an APRN who is not CNOR certified may
only first assist for patients that are in the APRN's scope of practice. If the APRN
wishes to first assist without any limitations, then she/he must become an RNFA by
meeting both the RNFA course and certification requirements. The relevant portion of
the rule is copied below.
BON Rule §217.18. First Assisting at Surgery
(a) Nurse First Assistants.
(1) A registered nurse who wishes to function as a first assistant (RNFA)
in surgery shall meet the following requirements:
(A) Current licensure as a registered nurse in the State of Texas
or a current, valid registered nurse license with a multi-state privilege in a party
state;
(B) Completion of a nurse first assistant educational program
approved or recognized by an organization recognized by the Board; and
(C) Is either:
(i) currently certified in perioperative nursing by an
organization recognized by the board (CNOR certification in perioperative
nursing); or
(ii) currently recognized by the board as an advanced
practice registered nurse and qualified by education, training, or experience to
perform the tasks involved in perioperative nursing.
(2) When collaborating with other health care providers, the RNFA shall
be accountable for knowledge of the statutes and rules relating to RNFAs and
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function within the scope of the registered nurse. Advanced practice registered
nurses functioning as first assistants under the authority of (a)(1)(C)(ii) of this
subsection shall function within the scope of the advanced role and specialty for
which they hold authorization to practice from the board.
(3) A registered nurse (including an advanced practice registered nurse)
functioning as a first assistant in surgery shall comply with the standards set forth
by the AORN.
RNFA programs that are acceptable to the BON are listed on the Competency and
Credentialing Institute's website, www.cc-institute.org/cert_crnf_prep_rnfa.aspx.
Performing Diagnostic Procedures
The Center for Medicare and Medicaid Services published final rules in the Federal
Register on November 2, 1999, that allows APRNs, if authorized by their state practice
acts, to independently perform those diagnostic tests for Medicare patients. While
performing all diagnostic lab tests is not in an APRN's scope of practice, certainly some
lab tests are. When appropriate to the role, basic lab procedures and performing tests
are included in APRN education and that education builds upon courses in the
undergraduate nursing program. Beyond that special education may be required when
performing some diagnostic procedures such as sonography, colposcopy, lumbar
puncture, as well as the radiologic procedures discussed below. (Also see related
section on ordering diagnostic tests in Section 5.6.)
Education Required to Perform Radiologic Procedures
NPs and CNSs in certain specialties may need to perform radiologic exams, including
fluoroscopy. Those APRNs must be aware they are required to comply with BON and
DSHS rules before performing these procedures.
22 TAC §217.14 (d) [NOTE: The sections of Texas Department of Health rules referenced have
changed to 25 TAC §§140.516 – 140.522. The name of the agency is now Department of State
Health Services (DSHS)]
(d) The registered nurse whose functions include radiologic procedures must act
within the scope of the Texas Nursing Practice Act and the Board's Rules and
shall comply with the training requirements and limitations of the Medical
Radiological Technologist Certification Act and Texas Department of Health
Rules, 25 TAC §§143.15-143.20. In addition, the registered nurse must be in
compliance with the Texas Medical Practice Act, the Texas Pharmacy Act, or any
applicable laws of the State of Texas.
The Department of State Health Services rules referred above limit the radiologic
procedures that an APRN may perform, and prohibit practitioners who are not
physicians, dentists, podiatrists, chiropractors or certified radiologic technologists from
performing certain tests. DSHS Rule 140.516 requires the direction and supervision of a
physician for APRNs performing fluoroscopy, and certain other procedures that the rule
labels as dangerous, and some procedures must be performed by RNs under direct
supervision. In addition, the APRN must take a course of approximately 2 to 3 weeks in
length as outlined in DSHS Rule 140.517.
It is recommended that APRNs performing tests that require supervision include the
specific procedures the APRN may perform in the Practice Agreement Protocol
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(protocol) and the purpose for performing those tests. The APRN and physician should
know definitions of supervision and direct supervision in DSHS Rule 140.502.
25 TAC §140.502 (11) & (34) (DSHS Rules)
(11) Direct supervision--A practitioner must be physically present and
immediately available.
(34) Supervision--Responsibility for and control of quality, radiation safety and
protection, and technical aspects of the application of ionizing radiation to human
beings for diagnostic and/or therapeutic purposes.
BON Rules on performing radiologic procedures also require that RNs, including
APRNs, who perform radiologic procedures outside of a Joint Commission or Medicare
accredited hospital register with the BON.
22 TAC §217.14 (BON Rules)
(a) A registered nurse who performs radiologic procedures other than in a
hospital that participates in the federal Medicare program or that is accredited by
the Joint Commission on Accreditation of Hospitals shall submit an application for
registration to the board and shall submit evidence including, but not limited to,
the following:
(1) current licensure as a registered nurse in the State of Texas; and
(2) the name and business address of the practitioner or director of
radiological services under whose instruction or direction the radiologic
procedures are performed.
(b) After review by the board, notification of registration shall be mailed to the
registered nurse informing him/her that the registration with the board has been
completed.
(c) The registered nurse who is registered to perform radiologic procedures
pursuant to subsection (a) of this section shall notify the board within 30 days of
any changes that would render the information on the nurse's application
incorrect, including but not limited to any changes in the identity of the
practitioner or director of radiological procedures under whose instruction or
direction the radiologic procedures are performed.
If an APRN plans to perform any radiologic procedures, he/she must complete the
mandatory course for non-certified radiologic technicians (NCT) as specified in 25 TAC
$140.518 or an abbreviated course permitted for RNs and PAs described in 25 TAC
§140.522.lxi A list of approved programs is available on the DSHS Radiologic
Technology webpage.
If the APRN is considering including radiologic procedures in her/his practice, refer to the
BON’s FAQ on Nurses Performing Radiologic Procedures, as well as all the rules listed
in this section. If radiologic procedures will be performed outside of an accredited Joint
Commission or Medicare approved hospital, the APRN must also register with the
BON.52
lxi
DSHS Rule on Alternate Training Requirements for RNs and PAs. Accessed at
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=
&pg=1&p_tac=&ti=25&pt=1&ch=140&rl=522.
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5.5 APRNs Delegating to Unlicensed Personnel
Unlike a physician, an APRN's ability to delegate to unlicensed personnel is limited. It is
the same as that of an RN. The BON allows APRNs and other RNs to delegate certain
tasks to assistive personnel.lxii Frequently, APRNs need to know if they can delegate
administration of drugs to unlicensed personnel.
In general, RNs may not allow an unlicensed person to administer prescription
medications. However, there are a couple of exceptions. An RN may delegate to a
certified medication aid administering medications in a nursing facility. The BON also
permits RNs to delegate administration of vaccines to properly trained persons. The RN
must personally ensure that the nursing or medical assistant can safely administer the
vaccine through verifying competency in every step of the procedure.53
5.6 RNs and LVNs May Accept Orders from APRNs
BON Position Statement 15.18 permits RNs and LVNs to take orders from APRNs. In
part, it reads as follows.
15.18 RNs Carrying Out Orders from Advanced Practice Nurses [in part]
…The Board recognizes that in many settings, nurses and advanced practice
registered nurses work together in a collegial relationship. A nurse may carry out
an advanced practice registered nurse's order in the management of a patient,
including, but not limited to, the administration of treatments, orders for
laboratory, or diagnostic testing, or medication orders. The physician is not
required to be physically present at the location where the advanced practice
registered nurse is providing care. The order is not required to be countersigned
by the physician. The advanced practice registered nurse must function within
the accepted scope of practice of the role and specialty in which he/she has been
authorized by the board.
As with any order, the nurse must seek clarification if he/she believes the order is
inappropriate, inaccurate, nonefficacious or contraindicated by consulting with
the advanced practice registered nurse or the physician as appropriate. The
nurse carrying out an order from an advanced practice registered nurse is
responsible and accountable for his/her actions just as he/she would be with any
physician order. (Board Action, 01/2001; Revised 01/2005).
There is also a BON position statement that verifies, nurses may accept orders from
physician assistants. However, all RNs should be aware that accepting orders from
optometrists is not permitted under the Nursing Practice Act. While several attempts
have been made to change the NPA to accept orders from optometrists and other
licensed practitioners, medicine always opposes the legislation so it never passed.
5.7 Health Care Services: What May NPs and CNSs Order?
Except for Medicaid patients, NPs and CNSs may order most health care services in
Texas. This section also informs APRNs about a few Texas practice acts that prevent
APRNs from ordering a few services for any patient.
BON. FAQ – Delegation and APNs. Accessed at http://www.bon.state.tx.us/practice/faq-apndelegation.html. RN Delegation Resource Packet. www.bon.state.tx.us/practice/delegationresources.html.
lxii
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Unfortunately, Medicaid rules have not kept pace with changes in practice and most
rules still require a physician's order. While CNAP is working with the HHSC to change
those rules now, it is likely to be a few years before all the revisions are complete. This is
frustrating for APRNs, but they must understand that Medicaid providers are legally
required to follow those rules. If the provider (e.g. a home health agency, DME provider
or pharmacy) fails to follow Medicaid rules then that provider may not legally obtain
compensation for the service. If the provider is reimbursed and the order is later found
to be out of compliance in an audit, then the payment may be recouped and the provider
subject to penalties.
Physical Therapy Services
In 1997, the Physical Therapy Practice Act was amended to allow physical therapists to
accept referrals from "any qualified, licensed health care professional that within the
scope of the professional's licensure is authorized to refer for health care services." (See
the definition for "Referring Practitioner" in §453.001 (9), Texas Occupations Code.)
In addition, the following Q&A is available on the Executive Council of Physical and
Occupational Therapist Examiners’ website, under the physical therapy "Questions &
Answers" section.
Q: Who can write an order for treatment?
A: You may accept an order from any practitioner authorized by law to prescribe
treatment. This includes PAs and Advanced practice registered nurses of all
types (midwives, clinical specialists, FNPs, for example.) The referring
practitioner must be licensed by a state board, but not necessarily by a Texas
Board, see §322.1.
The BON considers it in the scope of practice for NPs and CNSs to refer patients for all
types of therapy services. Therefore, other than Medicaid, there is no legal barrier that
would limit a facility from accepting orders from NPs and CNSs for physical therapy, or
other types of therapy services. If those services are to be provided in a hospital setting,
the hospital would need to privilege the APRN to order those services. Orders for
therapy services written by a NP or CNS would not require a co-signature. Information
on writing a physical therapy prescription is available on the Advance for Nurse
Practitioners’ website.54
Occupational Therapy Services
The Occupational Therapy Act, §454.213 (b)(5), Texas Occupations Code, was
amended in 1999, authorizing occupational therapists to accept referrals and orders for
treatment from qualified health care providers. In addition, the following Q&A is on the
website for the Executive Council of Physical and Occupational Therapist Examiners,
under the section titled, occupational therapy "Got a Question?".
Q: Can I accept a referral from a nurse practitioner?
A: Yes. The professional association modified the OT Practice Act, TOTA [Texas
Occupational Therapy Act] in 1999 so that occupational therapists can take
referrals from anyone who in their practice act may write scripts. That includes
but is not limited to physicians, chiropractors, dentists, physician assistants,
nurse practitioners, psychiatrists, podiatrists. This change went into effect in
1999.
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Diagnostic Tests
APRNs may order diagnostic testing as part of the assessment process. Federal CMS
Rule, 42 CFR 410.32(a)(3), clearly states that non-physician practitioners may order
diagnostic testing.
42 CFR 410.32 (Federal CMS Rule)
Diagnostic x-ray tests, diagnostic laboratory tests, and other diagnostic tests:
Conditions.
(a) Ordering diagnostic tests. All diagnostic x-ray tests, diagnostic laboratory
tests, and other diagnostic tests must be ordered by the physician who is treating
the beneficiary, that is, the physician who furnishes a consultation or treats a
beneficiary for a specific medical problem and who uses the results in the
management of the beneficiary's specific medical problem. Tests not ordered by
the physician who is treating the beneficiary are not reasonable and necessary
(see Sec. 411.15(k)(1) of this chapter).
(1)
Application to nonphysician practitioners. Nonphysician practitioners (that
is, clinical nurse specialists, clinical psychologists, clinical social workers,
nurse-midwives, nurse practitioners, and physician assistants) who furnish
services that would be physician services if furnished by a physician, and
who are operating within the scope of their authority under State law and
within the scope of their Medicare statutory benefit, may be treated the
same as physicians treating beneficiaries for the purpose of this
paragraph.
According to the BON in a letter dated February 25, 2004, ordering laboratory,
radiologic, and other diagnostic tests is permitted as part of "observation, assessment,
interventions, evaluation,…" for patients. See the BON letter at the end of this chapter.
This is a very important issue for laboratories and other facilities or hospital departments
that perform diagnostic testing. These diagnostic testing providers may be audited and
face substantial penalties if they are billing for tests ordered by unqualified practitioners.
Therefore, the letter provided at the end of this chapter is important verification that the
Texas BON considers ordering diagnostic tests and procedures to be within the NP and
CNS's scopes of practice.
Laboratory or Diagnostic Tests Performed in a Hospital
If the laboratory or diagnostic test is performed in a hospital, the APRN will have to be
credentialed and privileged in that facility to order the service. The hospital's medical
staff bylaws can legally exclude APRNs from having privileges in the hospital. However,
many hospitals in the state are credentialing and privileging APRNs. If your hospital
does not, it is possible to pursue a change. (See information in CNAP's manual,
Credentialing and Privileging NPs and CNSs in Texas Hospitals.) The author is also
available for assistance. Contact her at [email protected].
Just as in the case of therapy services, the Health and Human Services Commission
has not updated Medicaid rules. Therefore, laboratory and radiologic facilities still require
a collaborating physician's name for Medicaid patients. This should not be the case for
Medicare or private insurers.
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Diabetic Supplies in the Medicaid Program
While Medicaid is slow to update rules, the 2009 Texas Legislature took action that
should allow APRNs and other qualified providers to order diabetic supplies for eligible
patients. HB 1487 added §531.099 to the Government Code requiring the Texas
Medicaid Program to align ordering procedures for diabetic supplies with procedures in
Medicare. Since Medicare allows APRNs to order these supplies, we anticipate that the
Health & Human Services Commission will update its rules and processes accordingly.
When more information is available, it will be posted on CNAP’s website.
Durable Medical Equipment
Durable medical equipment (DME) is defined by the Texas Medicaid Program in Health
& Human Services Commission (HHSC) Rule 354.1031 (12).
1 TAC §354.1031
(12) Durable medical equipment--Machinery and/or equipment which meets one
or both of the following criteria:
(A) the projected term of use is more than one year; or
(B) reimbursement is made at a cost more than $1,000.
APRNs may sign forms ordering durable medical equipment for patients covered by
Medicare, but remain barred from ordering DME for patients covered by Medicaid.
APRNs often ask why they may order DME for Medicare patients and not for Medicaid.
Medicare rules, CFR §410.38, state that a physician must order DME, but the Centers
for Medicare and Medicaid Services (CMS) interprets that rule to also allow NPs and
CNSs to order those services. CMS Manual 100-08 contains the following information in
Chapter 5.
5.5 - Nurse Practitioner or Clinical Nurse Specialist Rules Concerning Orders (Rev. 242:
Issued: 02-22-08; Effective/Implementation Dates: 03-01-08)
A nurse practitioner or clinical nurse specialist may give the dispensing order and
sign the detailed written order in the following situations.
 They are treating the beneficiary for the condition for which the item is
needed;
 They are practicing independently of a physician;
 They bill Medicare for other covered services using their own provider
number; and
 They are permitted to do all of the above in the state in which the services are
rendered.
A nurse practitioner or clinical nurse specialist may complete Section B and sign
Section D of a Certificate of Medical Necessity (CMN) if they meet all the criteria
described above for signing orders.
The BON has determined that it is in the scope of practice for NPs and CNSs to order
DME. If the CNS or NP is ordering DME for a patient with Medicare or private insurance,
it is important to review the Medicare Rule §410.38 and applicable sections of the
Medicare Manual since any requirement for physicians ordering these services would
also apply to APRNs.
Medicaid rules have not been reinterpreted by HHSC to permit APRNs to order DME,
and despite repeated requests, the rules still state that a physician must order the
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service. However, in meeting with HHSC in summer 2008, HHSC indicated a
willingness to issue a memo to DME and medical supply providers, directing that APRNs
may sign the DME/medical supply order form. Check the CNAP website for updated
information. For more information on ordering DME for Medicaid patients, see HHSC
rule, 1 TAC §354.1035.
Ordering Electric Wheelchairs and Other Mobility Assistive Equipment
One type of DME that carries special requirements are power mobility assistive
equipment (MAE). NPs and CNSs may order power wheelchairs, power mobility devices
(PMDs), and other mobility assistive equipment (MAE) for Medicare patients. For several
years, the Centers for Medicare and Medicaid Services (CMS) permitted NPs and CNSs
to order durable medical equipment, but until May 2005, only certain specialty physicians
could order certain motorized vehicles such as scooters.
As with all health care and medical services, in order to be reimbursed, the service must
be within the practitioner's scope of practice in the state in which the service was
provided. According to the Texas Board of Nursing it is in the scope of practice for NPs
and CNSs to assess a patient's need for DME and to order the equipment. Therefore,
NPs may order PMDs for Medicare patients.
Background Information
When scooters and similar power operated vehicles (POVs) were introduced, CMS was
concerned about their stability and potential dangers. At that time, CMS staff decided
only specialists in physical medicine, orthopedic surgery, neurology, and rheumatology
were qualified to perform the evaluation to determine whether a POV was medically
necessary and whether the patient had the ability to operate the POV safely. Since that
time technological advances resulted in POVs with a much tighter turning radius and
more stability.
Therefore, CMS published a final rule in the April 5, 2006, issue of the Federal
Register.15 The new rule became effective on June, 2006, and makes the change that
was implemented in May 2005 permanent. The change allows any physician or other
treating practitioner, including a NP, CNS or PA, to write a prescription for a PMD.
Requirements and Documentation
There are special considerations in ordering these important, but expensive, power
mobility devices. Practitioners must perform a face-to-face assessment of the patient's
physical and psychological condition to determine the patient's need, ability to operate,
and potential to benefit from a PMD within the patient's home.
In order to qualify for the PMD, the patient's condition must impair his/her ability to
participate in mobility related activities of daily living (MRADLs). These MRADLs include
activities within the home such as feeding, dressing, toileting, bathing and grooming. The
need for a PMD or other MAE is determined through an algorithm in a MLN Matters
article issued on October 19, 2005, (MM3791). Any physician or other practitioner
ordering MAEs must know and follow the algorithm and flow chart in this article.
If the APRN determines that the most appropriate mobility assistive equipment for a
patient is a PMD, the APRN must determine the type of PMD (power wheelchair versus
scooter, etc.) and write the prescription. The written prescription must include the
patient's name, date of the face-to-face examination, diagnoses and conditions that the
PMD is expected to modify, description of the item, how long it is needed, the
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practitioner's signature who performed the assessment, and the date the prescription is
written. MLN Matters article MM3952, issued on 11/03/05, contains additional
information.55
Within 45 days of the evaluation, the APRN must also provide documentation of the
face-to-face assessment with supporting documentation that includes the medical
history, physical exam, diagnostic tests, summary of findings, diagnoses, treatment
plans and other pertinent information. The exam and documentation may have been
done during a hospital admission as long as the supplier receives the prescription and
documentation within 45 days of discharge.
Reimbursement
APRNs should also be aware that, for services billed on or after April 1, 2006, the
practitioner should bill the appropriate E/M code and an add-on code, G0372, on the
same claim. The G0372 code results in an additional payment to compensate the work
and resources required for submitting the pertinent parts of the medical record. For more
information on this issue, refer to MNL Matters article MM4372 issued on 3/16/06.56
NPs May Order Hospice Services but May Not Certify a Terminal Illness
Only a physician may certify or re-certify that a patient has a terminal illness. However,
the Centers for Medicare and Medicaid Services (CMS) allows NPs to act as "attending
physicians" for hospice patients who select a NP to provide this service. Unfortunately,
the federal legislation that enabled the change in CMS rules specified NPs could serve
as an attending and did not include CNSs.
In 2004, Medicare issued Transmittal # R304CP changing requirements for attending
physicians. Just like the physician, an APRN being reimbursed for these services may
not be employed by the hospice agency. For additional information, APRNs may also
refer to MLN article MM3226 issued on September 24, 2004.57
Texas State statutes and rules on hospice do not preclude an APRN from ordering
services for hospice patients. The Department of Aging and Disability Services (DADS)
regulates hospice programs. DADS Rule 40 TAC §97.403 requires physician referral
and refers to the "attending physician." Obviously NPs acting in this capacity may not
call themselves "attending physician" but could call themselves the "attending NP" or
“attending practitioner.” In essence the change allowing NPs to act as the attending
permits them to sign orders for hospice patients.
Just like Medicare, Medicaid Rule 40 TAC §30.14 requires the certification of terminal
illness to be completed by a physician.20 In order to receive continuous home care under
the hospice benefit, Medicaid Rule 40 TAC §30.54 requires a plan of care and orders by
a physician. However, no other Medicaid hospice rules prevent a NP from acting as the
attending, although a physician must still be on the interdisciplinary team and the APRN
would work with the hospice medical director.21
NPs & CNSs May Not Order Home Health but may Oversee the Plan of Care
Federal law currently states that only physicians may order home health services.
Therefore, regardless of the payer (Medicare, Medicaid, or private insurance), APRNs
may not order home health services for patients and sign the plan of care when the
home health agency is Medicare-certified.
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However, as of October 2, 2006, NPs and CNSs may be reimbursed by Medicare for
care plan oversight (CPO). According to Medicare Learning Network article MM4374
issued June 29, 2006, the physician who signs the plan of care does not have to be the
same practitioner who oversees the care.22 The Centers for Medicare and Medicaid
Services (CMS) largely sees the CPO as a coordination of care function, so this does
not affect the status of APRNs and their ability to write orders for home health patients.lxiii
There is currently a bill in the U.S. Congress to change the law to allow APRNs to order
home health. If that, or another bill that includes a provision allowing NPs and CNSs to
order home health, becomes federal law then the situation will change. However, until
federal law changes, there is nothing that can be done on the state level to allow NPs
and CNSs to order home health delivered by, or under the supervision of, a Medicarecertified home health agency.
As is the case in other Medicaid services, Medicaid Rules require that the plan of care
and supervision of that care be provided by a physician. Refer to 1 TAC §354.1035 and
§354.1037 for more information. The Texas Medicaid Program does not reimburse
physicians or APRNs for CPO services.
Some Home Health Agencies & Programs May Accept NP and CNS Orders
In Texas, there are licensed home health agencies that are not Medicare-certified that
can accept orders and plans of care signed by APRNs. In addition, there are some
Medicaid programs and some private payer sources that will allow APRNs to order or
certify the need for services (when not provided by a Medicare certified agency).
One example is the Primary Home Care Program that provides attendant care for more
than 120,000 people per month. DADS Rules on contracting for Community Health
Services defines "practitioner" to include APRNs. Primary Home Care Program Rule 40
TAC §47.47(b) allows practitioners to certify the need for services.
State law regarding home care agencies (§142.0063, Texas Health & Safety Code)
refers to "physician orders," but the law does not prohibit the Texas Department of Aging
and Disability Services from establishing rules that allow some licensed agencies and
home care programs to accept orders from other licensed providers functioning within
their scope of practice. It is encouraging that some state agency rules are beginning to
reflect an increasing role for APRNs. A recently revised home health rule, 40 TAC
§97.300 (b)(1), states: "A client's practitioner must order administration of medication." In
addition, 40 TAC §97.401(2)(A) and (B) pertaining to licensed (non-certified) agencies,
refer to a practitioner ordering treatment.lxiv
However, none of this changes the fact that federal law currently prohibits Medicarecertified home health agencies from accepting orders from APRNs. Home care agency
administrators are very familiar with the various programs and will know if the agency
can accept orders from APRNs or not.
APRNs May Not Order Orthotics and Prosthetics
The Texas practice acts for orthotists and prosthetists state these providers may only
accept orders from a physician or podiatrist. While some orthotic and prosthetic
lxiii
CMS. MM4374. Accessed at http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM4374.pdf.
DADS Rules may be accessed from
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=40&pt=1 .
lxiv
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departments may have policies that allow them to accept an order written by NPs or
CNSs in inpatient settings, this will not be the case in outpatient settings. APRNs should
be aware that they will need to obtain a physician's signature for these orders and
referrals.58
Ordering Restraints
APRNs may not order restraints for behavioral reasons. However, APRNs may order
restraints for medical purposes, if permitted by the facility's medical staff bylaws. Also, if
permitted by the facility, the APRN may also perform the assessment of the restrained or
secluded person that is required within one hour of application of the intervention.
Because of a long record of serious injury and death related to restraining and secluding
patients, this issue is addressed at length in the Hospital Conditions of Participation
(CoPs) Interpretive Guidelines from the Centers for Medicare and Medicaid (CMS). CMS
CoPs apply to all types of facilities that are reimbursed for care rendered to Medicare
patients, e.g. hospitals, skilled nursing facilities, and mental health facilities.
Over the past decade, the Texas Legislature enacted statutes and state agencies
adopted rules governing use of restraints and seclusion in state operated institutions. In
2005, Texas SB 325 established a study group to recommend standards that would
apply to all facilities operated or licensed by the state, for instance, juvenile probation,
state schools and intermediate care facilities for mentally retarded persons, and nursing
facilities. That study group completed its work and the recommendations are included in
a report issued in November 2006. Those recommendations have been implemented
and are reflected in many state agency rules.
On the federal level, CMS originally adopted rules for hospitals and other facilities
regarding use of restraints and seclusion in 1999, and those rules were amended in
2008. The rules address who may order restraints and seclusion.
42 CFR §482.13(e)(5)
(5) The use of restraint or seclusion must be in accordance with the order of a
physician or other licensed independent practitioner who is responsible for the
care of the patient as specified under §482.12(c) and authorized to order restraint
or seclusion by hospital policy in accordance with State law.
The CMS Interpretive Guidelines state "For the purpose of ordering restraint, a LIP is
any practitioner permitted by State legislated law and hospital policy as having the
authority to independently order restraints or seclusion for patients." This definition
appears in the October, 2008 Conditions of Participation: Patient's Rights, 42 CFR
§§482.13(e)(3)(ii) and 482.13(f)(3)(ii), and in the Interpretive Guidelines (in the Appendix
of the State Operations Manual starting at section A-0154 through with A-0168
specifically addressing the above rule. A—178 addresses the required evaluation one
hour after a restraint or seclusion is applied).lxv
CMS CoPs also address the circumstances under which restraint and seclusion are
appropriate. The rules clearly distinguish between ordering restraints, including the use
of drugs to control behavior, for medical reasons versus behavioral. The distinction
lxv
The most recent version of CFR citations may be accessed at http://www.access.gpo.gov/nara/cfr/cfrtable-search.html#page1. The Appendix of the CMS State Operations Manual may be accessed at
http://www.cms.hhs.gov/manuals/downloads/som107_Appendicestoc.pdf.
155
between medical and behavioral reasons for applying restraints is independent of the
setting in which the order is given. In other words, a medical reason for restraints may
occur in a mental health facility and a behavioral reason for restraint often occurs in
hospitals and nursing facilities. It is imperative that APRNs recognize the difference.
Restraints for Medical Reasons and Psychoactive Drugs
Texas statutes are silent on defining who is an LIP or who may order restraints for
medical reasons. The federal rules and interpretive guidelines make it quite clear that
routine psychoactive drugs and sleep agents prescribed in routine dosages are not
considered to be a chemical restraint.
However, Texas statutes for mental health and nursing facilities muddy the issue
through laws that require specific consent when prescribing psychoactive drugs. The law
requires the physician or someone designated by the physician to obtain specific
consent even if ordering the psychoactive drug has no intent to restrain the individual
and the psychoactive drug is routinely prescribed for the condition or diagnosis being
treated. Texas statutes do not directly address who may order psychoactive drugs, but
the statutes require physicians who order psychoactive drugs to meet certain standards.
APRNs would be required to meet these standards also.lxvi
Therefore, the BON is the authority on determining if an NP or CNS might be an LIP for
purposes of ordering medical restraints. Generally, NPs and CNSs would be able to
order restraints for medical reasons if the APRN is educated in the use of restraints, is
competent in recognizing the difference between medical and behavioral reasons for
ordering restraints, understands the 2008 CoPs and is privileged by the hospital to order
medical restraints.
APRNs privileged to order medical restraints should read the Interpretive Guidelines
referenced and must understand all of the following:
 Restraints must only be applied for valid medical reasons or as age appropriate,
 Except in the case of age appropriate restraint that would be applied by any cautious
child care provider, physical support devices, protective helmets, etc., or routine
restraint during medical or surgical procedures as approve by policy, less restrictive
approaches must be tried before applying a restraint
 Restraints must be removed as quickly as possible
 These limitations apply to all age groups. It is imperative that any NP or CNS who
has been privileged as an LIP for purposes of ordering restraints for medical
purposes can quickly identify the difference between applying a restraint for a
medical reason versus for a behavioral issue that must be assessed by a physician
or a LIP with expertise in mental health.
Restraints for Behavioral Reasons
Both CMS rule and Texas state law regarding mental health facilities, §576.024, Health
& Safety Code, and DSHS Rules, 25 TAC §415.261 (4) & (5) and §415.262 (b), state
that a behavioral restraint may only be ordered by a physician. Therefore no APRN may
order restraints for behavioral reasons in psychiatric facilities or hospitals even though
psychiatric-mental health nurse practitioners (PMHNPs) and clinical nurse specialists
§576.025, Health & Safety Code. Accessed at
www.statutes.legis.state.tx.us/Docs/HS/htm/HS.576.htm#576.025.
lxvi
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(PMH-CNSs) are qualified to do so. PMHNPs and CNSs are excellent consultants for
physicians who are not experts in psychiatric care.
The Face-to-Face Assessment
CMS permits specially trained RNs or PAs to perform the assessment that is required
within one hour of applying a restraint for an emergency behavioral intervention.
42 CFR §482.13(e)(12)
(12) When restraint or seclusion is used for the management of violent or selfdestructive behavior that jeopardizes the immediate physical safety of the
patient, a staff member, or other, the patient must be seen face-to-face within 1
hour after the initiation of the intervention…
(i) By a:
(A) Physician or other licensed independent practitioners; or
(B) Registered nurse or physician assistant who has been trained in accordance
with the requirements specified in paragraph (f) of the section.
Any APRN interested in this topic should read the entire text of the CMS Interpretive
Guidelines referenced above. In addition, PMHNPs and CNSs should also be familiar
with the following state rules that apply to mental health facilities.
25 TAC §415.262(c)(2) (DSHS Rule)
(2) A physician may delegate the face-to-face evaluation to a staff person:
(A) who is under the clinical supervision of a physician appointed to the
medical staff and who is privileged to practice in the facility or that portion of
the facility to which this subchapter applies; and
(B) who is a physician assistant or an advanced practice registered nurse
appointed to the medical staff and privileged to practice in the facility or that
portion of the facility to which this subchapter applies.
(3) A physician who delegates the face-to-face evaluation following the initiation
of restraint or seclusion must ensure that the follow-up conduct a face-to-face
evaluation of the individual is conducted by either the delegating physician or by
another physician appointed to the facility medical staff as soon as possible and
not later than 24 hours following the initiation of the restraint or seclusion.
The APRN who evaluates a patient one hour after the behavioral restraint or seclusion is
applied would have to be specifically educated in the use of restraint and seclusion,
competent to do both a physical and psychological assessment, and familiar with the
2008 Conditions of Participation §§482.13(f), and the interpretive guidelines. Performing
these functions would also have to be based on receiving the appropriate clinical
privileges that are consistent with applicable hospital bylaws and policies.
5.8 Forms and Certifications: What May APRNs Sign?
APRNs may sign most state of Texas forms and certifications based on a provision in
the Nursing Practice Act. In 1999, S.B. 1131 added §301.152(d) to the Nursing Practice
Act. It states:
(d) The signature of an advanced practice registered nurse attesting to the
provision of a legally authorized service by the advanced practice registered
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nurse satisfies any documentation requirement for that service established by a
state agency.
The provision directs state agencies to accept an APRN's documentation and signature
as adequate proof that a health care service was delivered. Therefore, most forms from
Texas state agencies will accept a NP's or CNS's signature unless there is a specific law
that requires a physician's signature. However, if a document will be used in a court of
law, it usually requires a physician's signature, so the APRN should be particularly
cautious if asked to certify a person's competency, for instance, without reviewing the
applicable statutes and rules. One exception is described below.
Adult Emergency Protective Order
In 2005, §48.208, Texas Human Resources Code, was changed to allow APRNs to
examine and sign a health status report for adults who may not be competent to consent
to protective services. The purpose of the report is to assess the elderly or disabled
adult's condition and determine if it justifies allowing Family and Protective Services to
obtain an emergency protective order for the individual. Any adult, family or
gerontological NP or CNS who performs this service should obtain training in assessing
these individuals and be familiar with all of §48.208, Human Resources Code.
Advance Directives and DNAR Orders
Federal regulations are silent about whether or not NPs, or any APRN, can sign paper
work and orders for "Do not attempt resuscitation" (DNAR). While it is certainly in the
scope of practice for NPs and CNSs to sign DNAR orders, unfortunately Texas law,
§§166.033 - 166.034, Health & Safety Code, specifies physicians must note the patient's
wish to not be resuscitated. Consequently, until the law is changed, APRNs should not
sign DNAR orders or the "Out of Hospital DNAR" form unless the APRN is signing as a
witness and meets the requirements under §166.003, Texas Health & Safety Code.
Section 166.034, Texas Health & Safety Code, (below) specifies the physician must be a
witness to the patient's statement if the advance directive is not written.
§166.034, Texas Health & Safety Code
(a) A competent qualified patient who is an adult may issue a directive by a
nonwritten means of communication.
(b) A declarant must issue the nonwritten directive in the presence of the
attending physician and two witnesses who qualify under Section 166.003, at
least one of whom must be a witness who qualifies under Section 166.003(2).
(c) The physician shall make the fact of the existence of the directive a part of the
declarant's medical record, and the names of the witnesses shall be entered in
the medical record.
The witnesses specified in §166.034 are described in §166.003, Health & Safety Code.
§166.003, Texas Health & Safety Code
In any circumstance in which this chapter requires the execution of an advance
directive or the issuance of a nonwritten advance directive to be witnessed:
(1) each witness must be a competent adult; and
(2) at least one of the witnesses must be a person who is not:
(A) a person designated by the declarant to make a treatment decision;
(B) a person related to the declarant by blood or marriage;
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(C) a person entitled to any part of the declarant's estate after the declarant's
death under a will or codicil executed by the declarant or by operation of law;
(D) the attending physician;
(E) an employee of the attending physician;
(F) an employee of a health care facility in which the declarant is a patient if
the employee is providing direct patient care to the declarant or is an officer,
director, partner, or business office employee of the health care facility or of
any parent organization of the health care facility; or
(G) a person who, at the time the written advance directive is executed or, if
the directive is a nonwritten directive issued under this chapter, at the time the
nonwritten directive is issued, has a claim against any part of the declarant's
estate after the declarant's death.
While NPs may not write the DNAR order, they may: 1) write verbal orders at the
direction of an attending physician who witnessed the declarant's statement; 2) write "do
not hospitalize, do not use artificial nutrition hydration;" 3) sign forms in which the
family/resident chooses the level of care since these are care plans, not orders; and 4)
witness living wills. Of course, NPs should discuss advance directives with residents and
families and document the discussion and decisions in progress notes and on any
appropriate forms in accordance with the guidelines below.
Whether a DNAR order is obtained in a hospital or nursing facility, NPs and CNSs can
complete the required documentation related to the DNAR order if the APRN discusses
the patient's wishes with the patient and family or legal guardian. The state of Texas
says that DNAR orders need to be accompanied by the following documentation: 1)
persons with whom the APRN spoke, and if not the resident/patient, why not, and the
relationship to the resident; 2) summary of the discussion and 3) decision reached.
Another very important form is the "Advance Directive."28 This document, also known as
a living will, is the document through which an individual conveys their wishes for
treatment should they have a terminal condition and cannot speak for themselves. The
NP can sign as a witness to this document if they are not employed by the attending
physician or the hospital or nursing facility. This is also the document that all of us
should download, complete, and sign to make our wishes known to our own family
members should we be unable to speak for ourselves.
APRNs May Declare Death but Only a Physician May Sign a Medical
Certification
APRNs who see patients in nursing homes may declare death, just as any RN under
§671.001, Texas Health & Safety Code. This is also verified by the BON Position
Statement. However, sometimes APRNs ask if they may declare death based on the
symptoms communicated by an LVN. Changes in the law are being considered that alter
this situation, but at the current time RNs may only pronounce death for a patient they
physically assess.
Texas law does not permit APRNs to sign a medical certification of death. Section
193.005, Health & Safety Code requires an attending physician, or associate physician,
to sign the medical certification within five days of the death.
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APRNs May Sign UIL Preparticipation Physical Exam Forms
Since June 2000, advanced practice registered nurses in Texas, whose scope of
practice includes primary care for children and adolescents, may sign the University
Interscholastic League (UIL) Preparticipation Physical Evaluation Form. The form states
that it may be signed by an APRN.
Of course APRNs are always limited to health care services within their scopes of
practice. Therefore, preparticipation sports physicals are primarily done by pediatric,
family and school nurse practitioners. There are also a few community health and
pediatric CNSs that perform sports physicals.
There is excellent information on sports medicine issues available on the UIL website.
This information includes a UIL Parent Information Manual that contains health
information that parents of young athletes should be familiar with. Pages 16 -24 of the
manual may be particularly helpful in your efforts to educate parents.
While the language in the UIL constitution allows APRNs to sign the forms, APRNs must
understand that individual school districts have the right to establish policies that are
more restrictive than the UIL requires. CNAP has had only one report of a school district
that does not accept preparticipation physical exam forms signed by an APRN.
Unfortunately that school district is the largest in the state, the Houston Independent
School District.
However, if a sports physical preparticipation form that you signed is returned because it
lacks a physician signature, be sure to educate the person about the UIL rules and the
APRN’s qualifications to perform the exam. One may verify that the UIL Constitution and
Rules permit APRNs to perform and sign preparticipation by referring to the pertinent
sections; §1205(a)(1), for high school students and §1478(d)(4) for junior high students.
If the school still refuses to accept the form based upon a school district policy, ask to
see the policy and find out the procedure to change the policy. Then contact Lynda
Woolbert. She will guide you through the next steps in the process.
NPs and CNSs May Sign Texas Works Forms 1836 A and 1836 B
The Department of Aging and Disability Services (DADS) operates a program called
"Texas Works." This is the program that ensures persons receiving Temporary
Assistance for Needy Families (TANF) and certain other benefits are engaged in work or
in educational activities that will prepare the client for work. The Texas Works Handbook
contains two forms entitled, "Medical Release / Physician's Statement," numbered
H1836-A and H1836-B. APRNs may be asked to sign these forms.
The purpose of the forms is to verify that a client cannot engage in work activities due to
a disability or need to be in the home to care for a close family member. Form 1836A
verifies the patient's ability or inability to work and gives information to the Texas Works
advisor regarding the extent of disability or need for care. The form requires the health
professional signing the form to specify the work restrictions that are necessary. Form
1836B verifies that the applicant's ability to work is affected by the requirement to care
for a disabled family member.
The instructions clearly state that "advanced nurse practitioners" may sign these forms.
Some agency staff may question whether a CNS may also sign this form. CNSs may
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validate their ability to sign the form for their clients by referring to §301.152(a) Texas
Occupations Code. The subsection of the Nursing Practice Act below defines advanced
practice registered nurse as including all four APRN roles and states that “advanced
practice registered nurse” and “advanced nurse practitioner” are equivalent terms.
§301.152 (Nursing Practice Act). RULES REGARDING SPECIALIZED TRAINING
(a) In this section, “advanced practice registered nurse” means a registered
nurse approved by the board to practice as an advanced practice registered
nurse on the basis of completion of an advanced educational program. The
term includes a nurse practitioner, nurse midwife, nurse anesthetist, and
clinical nurse specialist. The term is synonymous with “advanced nurse
practitioner.” [emphasis added]
APRNs must remember that they can only sign these forms for their patients. Just like in
prescribing/medication, it would be inappropriate for an APRN to sign these forms for a
friend or family member who is not a patient in the APRN’s practice. In addition,
remember that, just like in Workers’ Compensation, your patients are best served by
working to the extent that their physical or mental condition permits them to do so.
APRNs May Sign WIC Forms Authorizing Special Formulas
WIC refers to the Women, Infants and Children nutritional program that helps low
income pregnant women, new mothers, and yong children eat healthier food. The
program is currently being revised to allow families to access fresh fruits and vegetables
and to encourage more new mothers to breastfeed their infants. Program revisions
include new WIC forms. 59
When infants are on formula, WIC only allows certain formulas unless a qualified health
care practitioner signs the WIC form ordering a special formula. WIC permits APRNs to
sign those forms. All APRNs specializing in women and child health should be very
familiar with the WIC program and encourage eligible patients to take advantage of the
program.
APRNs May Determine School Bus / Commercial Driver Fitness
Beginning in June 1999, HB 1409 (Acts of 76th Texas Legislature) allowed APRNs to
perform the medical fitness exam for school bus drivers. Federal Rule 49 CFR §390.5
defines “medical examiners” as person who may determine fitness for all types of
commercial drivers. NPs and CNSs are included in this definition.
49 CFR §390.5 (Federal Motor Carrier Safety Administration [FMCSA] Rule)
Medical examiner means a person who is licensed, certified, and/or registered, in
accordance with applicable State laws and regulations, to perform physical
examinations. The term includes but is not limited to, doctors of medicine,
doctors of osteopathy, physician assistants, advanced practice registered nurses,
and doctors of chiropractic.
However, before a NP, CNS or any other APRN performs these exams, they need to
know exactly what is required. As mentioned in Chapter 2, the Department of Public
Safety establishes the standards for determining the fitness of school bus drivers and
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other commercial drivers in Texas.lxvii Applicable DPS Rules specifically defer to federal
rules, 39 CRF §391.41 for medical qualifications and §391.43 standards for performing
the exam. Both of these rules are very detailed and require medical examiners to be
familiar with the content, as well as the physical, mental and emotional demands placed
on those who operate commercial motor vehicles. All the applicable federal rules may
be accessed on the Federal Motor Carrier Safety Administration or GPO websites.
The medical evaluator must complete the prescribed form, “Medical Examination Report
for Commercial Driver Fitness Determination.” This form is available on both the DPS
and Federal Motor Carrier Safety Administration websites. The form may be directly
accessed at http://www.fmcsa.dot.gov/documents/safetyprograms/Medical-Report.pdf.
The first page is the driver information and health history that the driver completes and
medical examiner must review. The following two pages are the exam findings
completed by the APRN. The following five pages are instructions that include the text
of the rules the examiner must know. The final page is the Medical Examiner’s
Certificate that the examiner completes if the examiner finds the person qualifies to drive
a commercial vehicle. A commercial driver must carry the medical certificate with
him/her at all times when operating the school bus or truck.
The eye portion of the exam may be completed by an opthomologist or optometrist. If
the person does not pass the vision or hearing screenings at the required levels, the
medical examiner should refer to an optometrist, audiologist or other appropriate
specialists for more accurate assessment. Furthermore, drivers who have some limb
impairment may be referred for skills evaluation. Drivers with obvious disabilities are
required to present a Skill Performance Evaluation certificate to the medical examiner.
APRNs May Sign SOME Medical Verifications for Disabled Parking Placards
On June 19, 2009, SB 1984 went into effect allowing APRNs to sign medical
verifications that allow individuals to obtain temporary disabled parking placards. The
medical verifications are in the form of either a notarized statement or a prescription.
Individuals applying for a disabled parking placard must accompany their application
with a medical verification unless they apply in person and have an obvious disability
such as a missing limb. The placard allows the person to park in places reserved for
handicapped individuals.
The bill amends §681.003, Texas Transportation Code, permitting APNs and PAs to
verify a person is legally blind or has a mobility problem. However, the bill includes
significant limitations the APRN must know.
Limitations on Signing Medical Verifications
SB 1984 made signing these forms a delegated medical act. Therefore, the delegation
will have to be included in the Practice Agreement Protocol. In Addition, APRNs
may only sign verifications accompanying initial applications for a temporary parking
placard if the individual lives in a county with a population of 125,000 or less.
If the patient needs a permit for longer than six months, then a physician must sign the
prescription for the subsequent verification. A physician must also sign the medical
verification for patients with permanent disabilities to obtain a permanent handicapped
license plate.
Texas Department of Public Safety rule for medical fitness of school bus drivers is 37 TAC §14.12.
Citations for DPS rules on interstate and intrastate commercial drivers are 37 TAC §§16.8-16.9.
lxvii
162
Since APNs are limited to signing verifications for only patients residing in counties with
a population of 125,000 or less, APNs must know which counties in their area qualify. To
find that information, go to http://www.tsl.state.tx.us/ref/abouttx/popcnty42008.html. That link
to the “About Texas” Website lists the estimated 2008 population of Texas counties from
largest to smallest. The first 30 counties on the list have populations greater than
125,000, and therefore APNs will only qualify to sign medical verifications for individuals
living in the remaining 224 counties, and only for the first application for a temporary
placard.
Qualifying Disabilities
Before signing a prescriptive for a disabled parking placard, APNs also must also know
the list of qualifying conditions. The Transportation Code identifies the following
impairments that qualify a person for a disabled parking placard:
(1) cannot walk 200 feet without stopping to rest;
(2) cannot walk without the use of an assistance device, including a brace, cane,
crutch, another person, or a prosthetic device;
(3) cannot ambulate without a wheelchair or similar device;
(4) is restricted by lung disease to the extent that the person's forced respiratory
expiratory volume for one second, measured by spirometry, is less than one liter, or the
arterial oxygen tension is less than 60 millimeters of mercury on room air at rest;
(5) uses portable oxygen;
(6) has a cardiac condition to the extent that the person's functional limitations are
classified in severity as Class III or Class IV according to standards set by the American
Heart Association;
(7) is severely limited in the ability to walk because of an arthritic, neurological, or
orthopedic condition; or
(8) has another debilitating condition that limits or impairs the person's ability to walk.
For more information on qualifying conditions, APRNs should read, “Disabled Parking:
What APNs Must Know” on CNAP’s website.This article contains additional information
on a related piece of legislation and the advice APRNs should give their patients.
5.9 The Role of NPs and CNSs in Texas Workers’ Compensation
Under current Texas Workers' Compensation (TWC) laws, only "treating doctors"
(physicians, podiatrists, dentists and chiropractors) may manage an injured worker's
care. NPs and CNSs can be the provider who evaluates and treats the injured worker,
but may only sign TWC forms on behalf of the "treating doctor" (e.g. Jack Doe, FNP for
Jane Doe, MD). This is the case even when the physician does not see the patient.
There are FNPs and ANPs who see worker's compensation patients in their practices,
but they only do so in conjunction with a physician who is on the Division of Worker's
Compensation's Approved Doctor list. Only those physicians may manage the care of
injured workers through Texas Workers' Compensation insurance.
If an APRN plans to see injured workers on a regular basis, it is advisable to become
very familiar with the Texas Workers' Compensation system and how to return patients
to work as soon as possible. There is excellent information for providers on the Division
of Workers' Compensation health provider’s website. Another good resource is an article
written by San Angelo FNP, Lynda Sutliff, “Work-Related Injuries.60
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Reimbursement
The rate for physician reimbursement by Texas Workers' Compensation is 125% of
Medicare. The rate for NPs and CNSs who bill under their own names is 85% of the
physician's fee. APRNs may be providers in Texas Workers' Compensation networks.
5.10 The Role of NPs and CNSs in Nursing Facilities
NPs and CNSs are very important providers in nursing facilities. Federal law and the
Center for Medicare and Medicaid Services (CMS) rules permit NPs or CNSs to
substitute for many required physician visits.
These APRNs may not admit residents to nursing facilities, and the APRN must work in
collaboration with the physician. In essence, CMS considers the physician to be
delegating some of the federally mandated and medically necessary visits to the APRN.
This is a specialized area of practice and APRNs practicing in nursing facilities must be
knowledgeable about CMS requirements as well as the rules and regulations of the
Texas Department of Aging and Disability Services (DADS), the agency responsible for
licensing nursing facilities in Texas. It is beyond the scope of this guide to explain the
requirements in detail so the discussion focuses on basic information and resources for
further information.
The difference between Nursing Facilities (NFs) and Skilled Nursing
Facilities (SNF)
The distinction between NFs and SNF is based on the payer and the requirements of
that payer. SNF requirements apply when Medicare Part A is being billed for the per
diem rate. NF requirements apply when the per diem is reimbursed by Medicaid, private
insurance, or paid personally by the resident. Medicare does not pay for long-term
custodial or intermediate care. Therefore, Medicare patients must be certified to require
medical or rehabilitation treatment provided by a SNF. SNFs are both state licensed and
federally certified. Nursing facilities are state licensed. One facility may have both types
of licensed beds.lxviii
The important difference for APRNs is the fact that they may perform the comprehensive
initial visits (the initial history and physical) for NF residents and any other required
physician service as well as medically necessary visits. For SNF residents, only a
physician can perform the initial comprehensive visit (initial history and physical). APRNs
may perform medically necessary visits prior to the physician's initial visit, and the
physician must personally perform the comprehensive visit within 30 days. After the
physician's comprehensive visit in the SNF, the APRN may alternate with the physician
in performing required visits. Required visits for both NF and SNF include:
1. an initial visit within 30 days
2. every 30 days for 90 days
3. then every 60 days thereafter.
lxviii
Iyer, P.W. (2005). Nursing Home Lititgation: Investiation and Case Preparation, 2 nd ed., p. 332.
42 CFR §483.5.Accessed http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr483_08.html.
CMS. MLN Matters SE0418. Non-Physician Practitioner Questions and Answers. Accessed
http://www.cms.hhs.gov/MLNMattersArticles/downloads/SE0418.pdf.
164
Employment by a Nursing Facility versus Outside Employment or SelfEmployment
APRNs employed by a nursing facility are limited in providing certain services. Only
physicians and APRNs that are not employed by the facility may perform the initial
comprehensive visit or sign initial orders in nursing facilities. (APRNs may not perform
the initial comprehensive visit in SNFs, regardless of employment status.) APRNs
employed by the facility may not perform any regulatory visit. The regulations state that
the resident must be seen within the first 30 days, then every 30 days for 90 days, then
every 60 days thereafter. When employed by the facility, the APRN may only make
medically necessary visits. The medically necessary visits are usually made for a
change in condition such as a urinary tract infection, or fall.
APRNs practicing in nursing facilities of any type are usually employed by a physician,
physician group, an APRN group, or are self-employed. Self-employed APRNs usually
contract with one or more physicians to assist those physicians in caring for the
physician's nursing facility residents.
Delegation of Prescriptive Authority and Medical Aspects of Care
As explained in Chapter 4, prescriptive authority may be delegated by the Medical
Director under the long-term care facility-based provisions, or delegated by the attending
physician under the primary practice site provisions. In either case, the APRN must have
a copy of the signed protocols in each nursing facility where the APRN sees residents.
Generally APRNs employed by a nursing facility or working with the Medical Director to
provide coverage for all the nursing facility residents would have prescriptive authority as
a facility-based practice site. APRNs seeing residents for a specific physician group or
for individual physicians have delegated authority under the primary practice site
provisions. The fact that there is no limit on the number of physicians who may delegate
prescriptive authority to one APRN allows APRNs a great deal of flexibility in nursing
facility practices.
Resources
APRNs practicing in nursing facilities should be familiar with Title 40, Chapter 19 of the
Texas Administrative Code. These are the Texas DADS rules on nursing facility
licensure and operation requirements. Of particular relevance are 40 TAC §19.1203 on
frequency of physician visits and §19.1205 on delegation of physician tasks that explain
the "physician" services that an APRN can perform for NF and SNF residents.36
The Medicare Learning Network (MLN) has a very informative article, SE0418, entitled,
"Non-Physician Practitioner Questions and Answers." It answers common questions that
APRNs have about providing care in nursing facilities for both NF and SNF residents.
On November 13, 2003, the CMS Survey and Certification Group issued Memorandum
S&C-04-08. The memo clarifies the differences concerning physician delegation of tasks
to nonphysician practioners (NPPs) in SNFs and NFs. While the MLN article cited above
is in part based on this memo, the memo offers additional detail for those who need to
understand the legal and regulatory difference between SNFs and NFs.
MLN Matters article MM4246, issued in January 2006, explains new code changes for
reporting evaluation and management visits in SNF and NF settings for visits made by
physicians and qualified nonphysician practitioners (NPPs). This transmittal also
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announced a change allowing NPPs to be reimbursed for medically necessary visits
prior to the initial visit performed by the physician in a SNF.
At the end of each year, CMS issues changes in Evaluation and Management (E&M)
and diagnostic codes that will go into effect in January of the following year. Therefore,
as in all areas of practice, APRNs who see residents in nursing facilities must stay up to
date on all the regulatory and reimbursement changes that affect their practices.
The Gerontological Advanced Practice Nurses Association (GAPNA) has a section on
their website with extensive information for APRNs who are new to this practice arena.
See the website, http://www.gapna.org. The annual preconference for GAPNA includes
sessions on managing a nursing facility practice with emphasis on federal regulations,
billing, and coding. Check the GAPNA website or Chapter 3 of this manual for local
chapters.
Additionally, the American Medical Directors Association, www.amda.com, has a Tool
Kit for Mid-Level Practitioners addressing the issues discussed here. Excellent
networking opportunities in Texas include the Texas Medical Directors Association,
www.tmda.org/. TMDA hosts an annual conference each fall.
5.11 Employment Issues and Contracts
Getting that first job as an APRN is exciting and creates some anxiety for most new
APRNs. Even APRNs with lots of experience can make some bad job choices. However
knowing the questions to ask a prospective employer makes work life transitions much
easier.
As a first step, the authors strongly recommend that NPs and CNSs refer to the Nurse
Practitioner's Business Practice and Legal Guide (3rd edition) by Carolyn Buppert. While
this reference does not offer information that is specific to Texas, many employment
issues are not dependent on the state in which the APRN practices.
Many physicians have not worked with APRNs in the past. This should not deter the
APRN from working with the physician, but the APRN should carefully evaluate the
physician's willingness to learn and conform to the rules established by the Texas
Medical Board in delegating prescriptive authority.
It is also wise to understand the physician's philosophy on supervision and whether the
physician intends to supervise all of the APRN’s practice versus only those aspects of
the practice that are required by law. The physician is responsible for the total care that
their patients receive so it is certainly within the physician's prerogative to supervise
more of the APRN’s practice than the law requires, but the physician should be aware
that they are accepting more liability if they choose to do so.
Some NPs and CNSs feel very comfortable working in highly supervised settings, and it
may be just what a new APRN graduate needs. There is no right or wrong in the degree
to which a physician chooses to supervise an APRN, and the supervision that is
appropriate will always vary with the acuity of the patients and the amount of experience
the APRN has in treating that population of patients. However, it is very important that
the APRN is comfortable with the physician's level and style of supervision. While close
supervision may be reassuring to some APRNs, it may be stifling to an APRN who has
extensive experience and is highly competent in treating a particular patient population.
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It also may be to the APRN's advantage to work with the physician for a day or two
before accepting a position. As an alternative, the APRN should consider including a
trial period of one month to 3 months in which both parties may terminate the contract.
The employment contract should stipulate that the APRN should be paid for the time and
there would be no enforcement of restrictive clauses in the contract if the APRN
terminates during this period of time.
In addition, the APRN should consider including a provision in the contract that the
physician agrees the practice currently conforms to all HIPAA, OSHA, CLIA
requirements, and that billing practices conform to CMS, Texas Medicaid, or private
insurer requirements, as appropriate to the insurance plan being billed. The contract
should include language that failure to meet the requirement may result in termination of
the contract and renders all restrictive clauses null and void. The language should also
include a provision for the APRN's payment up to the date of termination.
One NP had a very bad experience when she signed an employment contract that
contained a restrictive non-competition clause that would not permit her to take another
NP job or start a practice in the area for two years after leaving the practice.
Unfortunately after working two weeks, the NP found the physician's practice was not
conforming to HIPAA, OSHA and CLIA standards. Since APRNs are required to conform
to all other state and federal requirements in their practices, an APRN working within
such a practice must leave or help bring the practice into compliance. In this case,
bringing the practice into compliance was more work than this APRN expected when she
negotiated her salary. In addition, the physician delayed signing the practice protocols.
This left the APRN unable to prescribe medications in an alternate site.
While this bad situation is not common, it informs other APRNs about provisions they
might want to include in an employment contract. It is never wise to sign an employment
contract developed by the physician's attorney without having the contract reviewed by
your own attorney and questionable provisions negotiated and re-written to meet the
APRN's needs. Also be aware that most attorneys are not familiar with advanced
practice registered nurses, so select counsel that has experience with structuring such
contracts for APRNs. While it is certainly appropriate for the APRN to be fair and
reasonable in negotiating the contract, this is business and it is not the APRN’s job to
take care of the physician. The APRN should always think in terms of the provisions that
should be included in the contract to protect the APRN.
NPs and CNSs also need to be very cautious when they leave a practice. Whether
parting on the best of terms or leaving very abruptly after being fired, the APRN often
feels an obligation to notify his/her patients. Be aware that this will often not be possible.
These patients belong to the practice, no matter how long you have provided their health
care. To take their contact information, without permission would be unprofessional
conduct and violate both HIPPA regulations and the NPA. If you have advanced notice
you can certainly tell the patient you are leaving. If the patient later contacts you, you
may tell the patient where you are practicing, but anything more would be considered
solicitation.
The situation is very different if the NP or CNS owns the practice. In that case, the
APRN has an obligation to notify the patient and inform then how they may access their
medical records. However, in an employment situation, the APRN has very few, if any,
rights to contact former patients.
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Resources
Nurse Practitioner's Business Practice and Legal Guide contains a sample employment
agreement in Appendix 10-B. NP Central advertises an employment contract template
for nurse practitioners created by Carolyn Buppert, MSN, JD, ANP. NP Central also has
other resources on starting a practice. In addition, the American Association of Nurse
Practitioners (AANP) also has good practice information, including "Tips on Contracting".
Two sources offer NP salary data: NP Central and Advance for Nurse Practitioners.
Advance conducts a new surey every two years. The 2009 Salary Survey data should be
published in February 2010.61
5.12 APRN-Owned Practices
NPs and CNSs may own their own practices in Texas. However, owning a practice does
not change the fact that certain aspects of the practice must be delegated and
supervised by a physician. Therefore, it is important that APRNs not confuse the
business aspects of their practice with the legal requirements for diagnosing and
prescribing. Owning a practice does not alter the limitations on an APRN's scope of
practice.
Contracting with a Physician for Supervisory & Consultation Services
If a CNS or NP is going to prescribe medication, the APRN's practice must be in a site
that qualifies for prescriptive authority, the APRN must have a delegating physician, and
that delegating physician must meet the same supervisory requirements as in a practice
owned by the physician or any other entity. The APRN contracts with the physician to
provide supervisory and consultation services, and the APRN pays a fee to the physician
based on the terms of the contract.
APRNs have been very innovative through the years in negotiating with physicians for
these services. In lieu of direct payment, some APRNs see patients in the delegating
physician's practice. This may be a good way for a new APRN to get established.
However, as soon as the APRN has a full patient practice it is not cost effective for the
APRN to close his/her own practice in order to provide services for the delegating
physician. Therefore, an APRN should carefully consider signing any long-term contract
that would not allow the APRN the flexibility to re-structure the terms of the contract with
the physician.
Texas law does not allow reimbursing the physician for his/her time by splitting fees or
paying a certain percentage of your profits to a delegating physician. It is also illegal for
an APRN to employ a physician. (See section below for additional information.) It is
possible for the APRN and physician to each own their own businesses and share office
space, as long as the contract is clearly structured so it does not violate provisions in
Texas law that prevent different types of professionals from jointly owning businesses.
These contractual issues are complicated and the attorneys that develop contracts for
an APRN-owned business must be knowledgeable about health law and structuring
businesses in Texas. The APRN should be represented by an attorney who is familiar
with helping APRNs structure their businesses. If an attorney is not familiar with the
doctrine of "the prohibition against the corporate practice of medicine' without doing
research, that is probably not the right attorney to write the contract and represent your
interests.
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Finding a physician who reliably meets all supervisory requirements for the type of
practice site is often the major challenge the APRN faces in starting his/her own
practice. Some physicians may enter the contract with every intention of fulfilling the
supervisory requirements, but finds this more time consuming than anticipated.
Therefore, it is wise to structure a contract so the APRN will not have to buy out the
physician's contract. The contract should allow the APRN to find a different delegating
physician as soon as possible if the current physician is unable or unwilling to fulfill all
requirements.
APRNs May NOT Employ a Physician
Chapter 162 of the Medical Practice Act (§§162.001 -162.051 and §§162.201 - 162.206)
limits the employment options for physicians to entities owned or operated by other
physicians or certain health care organizations certified by the Texas Medical Board.
Therefore, a non-physician, including APRNs, may not employ a physician.
Physicians and APRNs May NOT Jointly Own a Practice or Split Fees
Physicians are not just limited in the type of employment they may accept, but also in the
type of business relationships they can form. Some prohibitions in Texas law also affect
an APRN’s ability to form a business relationship with another type of other licensed
health care provider.
The Business Organizations Code requires owners or partners in a professional entity to
be licensed to provide the same professional service as is rendered by that professional
entity. In other words, Texas law prevents formation of businesses for professional
purposes by different professionals unless specifically permitted by statute..lxix Business
organizations of any type are also expressly prohibited if it would violate other state law
(e.g. Medical Practice Act).lxx
The Corporate Practice of Medicine
Texas prohibits the "corporate practice of medicine." The Texas Medical Board (TMB)
explains this legal doctrine on its website and offers legal citations that support the
doctrine. In part, the TMB explains the prohibition as follows.
A general summary of the corporate practice of medicine doctrine is that it
prohibits physicians from entering into partnerships, employee relationships, fee
splitting, or other situations with non-physicians where the physician's practice of
medicine is in any way controlled or directed by, or fees shared with a nonphysician. Generally, physicians may enter into independent contractor
arrangements with non-physicians. However, whether an independent contractor
situation exists is a question of law and attendant facts.lxxi
Physicians and APRNs can form partnerships to own the building and equipment, but
not to co-own the practice. An APRN or physician may own the building individually and
rent office space to the other person, but splitting any patient fees or profits of the
practice are prohibited. As discussed previously, physicians may consult with an APRN
§§301.003 and 301.006, Business Organizations Code. Accessed
http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.301.htm#301.003.
lxx
Business Organizations Code, §§2.003- 2.004. Accessed:
http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.2.htm#2.003.
lxxi
TMB. Corporate Practice of Medicine. Accessed
http://www.tmb.state.tx.us/professionals/physicians/licensed/cpq.php.
lxix
169
under a contract for professional services. However, any sharing of professional fees,
even on
a percentage basis, is probably not permitted.
Certain Pain Management Clinics Must Be Owned by a Physician
SB 911, passed in 2009, requires ownership of some clinics or practices to only
physicians licensed in good standing in the State of Texas. The only practices falling
under this restriction are those in which the practitioners prescribe opioids,
benzodiazepines, barbiturates, or carisoprodol for a majority of their patients and offer
no other forms of treatment. For more details, refer to Section 6.11 and the subsection
titled, “Pain Clinics that Must be Regulated by the Texas Medical Board.”
Advertising
APRNs may advertise their practices, but there are legal restrictions on the way in which
health care providers may represent themselves and their practices. Not only is it
unprofessional conduct to make false statements, it is also illegal to mislead the public.
The APRN should avoid any reference to offering "medical" services or having a
"medical" practice. Those are terms that denote a physician is providing the services.
The APRN should not only include the APRN's appropriate initials after his/her name,
but spell out what those initials mean. While this is not technically required by any law or
rule, APRN advertising is under scrutiny and most members of the public do not know
what ANP, PNP, FNP, CNM or CRNA means unless those initials are explained in
words.
A FNP could say that they are working in a "family practice" and providing "family health
care services." A CNM could say she provides women's health care including prenatal,
delivery and postnatal health care services.
If one also has an academic (e.g. Ph.D, DSN, or DrPH) or professional doctoral degree
(DNP) then the APRN may also use "Dr." before his or her name. However, if one
chooses to use the title, "doctor," one must clearly indicate the source from which that
title is being used. It is illegal to infer that one might be a MD or DO in any use of titles in
advertising or other professional capacity.
As indicated in section 2.10, there are rules that apply to all health professionals on
advertising and using the title, "Doctor." These rules are in §102.004 and §§104.003 104.004, Texas Occupations Code. In addition, APRNs must understand the difference
between advertising and soliciting patients. Soliciting patients for your practice, or for
another practitioner's practice, constitutes unprofessional conduct. For more information,
read all of Chapters 102 and 104, Texas Occupations Code.
APRNs should know the forms of communication that constitute advertising. The
definition of "advertising" in 22 TAC §164.2 (Texas Medical Board Rules) includes
business cards and nameplates as forms of advertising. Refer to other sections in
Chapter164 for additional rules on physician advertising. While these rules do not pertain
to APRNs, they offer appropriate guidelines for advertising an APRN’s practice.
5.13 Credentialing and Privileging Basics
Credentialing and privileging are processes that are used by hospitals and health care
organizations to ensure that their customers and the public are treated by licensed
professionals who have been educated, trained, certified and/or licensed to perform
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certain medical and health care tasks. These two processes also provide a measure of
confidence by the facility that the health care professionals are able to provide a high
level of care and avoid malpractice.lxxii
Credentialing Basics
Credentialing enables an institution or managed care organization to evaluate a
professional’s qualifications in order to determine appropriateness for a position. The
credentialing process involves confirming a healthcare provider’s licensure and
authorization to practice in the state, and any relevant certifications, education, and
training. The process also requires verifying professional references and searching for
any past disciplinary actions, criminal history, and entries in the national practitioner
databanks. Credentialing requires “primary source verification.” This means the hospital,
or the credentialing organization contracted to provide the credentialing service, must
verify credentials the applicant claims to have with the agency or institution that granted
the license, degree or certification, if those credentials are relevant to the position or
privileges for which this health care practitioner is being considered. The organization
must also evaluate if any past history would disqualify the practitioner for the position or
privileges being requested.
Hospitals have a mandatory requirement to query the National Practitioner Data Base
(NPDB) for a new healthcare practitioner who is applying for credentials or for medical
staff appointment.lxxiii They must re-query biennially for each practitioner who holds
privileges at the facility. Further, they must query when a practitioner is seeking to gain
temporary privileges, additional privileges or to add to existing privileges.
APRNs are reported to the NPDB if their malpractice insurer pays a plaintiff in regard to
a malpractice suit. In addition, state licensing boards, hospitals and professional
societies are required to report adverse actions against a health care practitioner.lxxiv It is
also important to note that “it is crucial that an applicant provide complete and forthright
information in the credentialing process,” because adverse actions not disclosed on the
application that are discovered through the credentialing process may be grounds for
denial of privileges or dismissal and is an occurrence that must be reported to the
NPDB. lxxv
Privileging Basics
Privileging is the process through which the health care practitioner is granted authority
to provide certain care and services to patients within a healthcare facility. For instance,
core privileges granted by most hospitals for APRNs include performing a history and
physical examination (H&P), ordering laboratory, radiology and other diagnostic
procedures; rounding on patients and documenting progress and care; writing orders for
drugs, biological, medical devices and treatment of the patient, etc. Only APRNs who
could document adequate training and competence would be granted privileges to
lxxii
Rustia, J.G. & Bartek, J.K. (1997). Managed care credentialing of advanced practice registered
nurses. The Nurse Practitioner, 22 (9),90 -103.
lxxiii
See Chapter 10 of the Guide to APRN Practice in Texas for an in depth discussion of the national
practitioner databanks.
lxxiv Buppert, C. (2004). Nurse Practitioner’s Business Practice and Legal Guide, Sudbury, MA: Jones and
Bartlett.
lxxv Fruth, R.A., Mitchell, S.A. & Kamajian, J.F. (1999). Credentialing and privileging of advanced practice
registered nurses. American Association of Critical-Care Nurses Clinical Issues: Advanced Practice in Acute
Critical Care, 10, 316-336.
171
independently perform such procedures as a bone marrow aspiration or lumbar
puncture.
Privileging is the process of professional peer evaluation that is done by a select
committee within an institution. It is not a simple task and requires evaluation of each
person’s education, experience, training, etc., in order to determine a clinician’s
capabilities. In order for this process to occur, a facility must formulate a system by
which this process can occur in a reasonably expeditious, fair way that can minimize risk
to the institution and maximize patient safety.
When privileged, each practitioner must be informed of the privileges they have been
granted within the institution. The permitted patient care activities may be the same as
those allowed by state and federal laws or they may be restricted by the institution. The
delineation of privileges may follow several formats, such as a general description of a
practitioner’s duties within an institution or it may involve a specific procedural listing of
allowable acts, such as suturing, punch biopsy, etc.
Regardless of the format, privileging is a fluid process over time, requiring reevaluation
and updating on a regular basis as a clinician’s role changes or expands. This evaluation
process requires a “…quality assurance program that can produce clinically relevant
data to serve as minimum benchmarks of performance” (Bartek & Rustia 1997, p. 102).
Several other components of privileging are necessary, such as “…a corrective action
policy for identified problems…including…termination, restriction of privileges,
suspensions of clinical practice, and other actions as appropriate” (Bartek & Rustia,
1997).
Privileging and Skills Verification
Skills verification is an important part of the privileging process. It can be assumed that
NPs and CNSs in Texas who have prescriptive authority numbers issued by the Texas
Board of Nursing (BON) have the education necessary to perform a wide array of skills
in the hospital such as performing H&Ps, ordering and interpreting diagnostic tests,
providing health teaching and referrals, coordination of care, ordering drugs, and
initiating treatment plans.
However, confirming that a particular NP or CNS is competent in certain subspecialties
and performing certain procedures that are not part of the competencies included in the
educational program is the primary challenge in privileging NPs and CNSs. Some of the
policies in Chapter 5 of CNAP’s manual, Credentialing and Privileging Nurse
Practitioners and Clinical Nurse Specialists in Texas Hospitals may be helpful in guiding
these efforts. Also, the BON’s Advanced Practice Advisory Committee prepared a
document to guide scope of practice decisions and help APRNs, and those involved in
privileging APRNs, understand how new patient care activities and procedures can be
incorporated into an individual APRN’s scope of practice. The document is posted in the
APRN portion of the BON website.
Texas Law on Credentialing and Privileging APRNs in Hospitals
Texas hospitals are not required to privilege APRNs, however most do so. Hospitals that
privilege APRNs must also meet the requirements of §241.105, Health & Safety Code,
entitled “Hospital Privileges for Advanced practice registered nurses and Physician
Assistants.” This section of the hospital licensing statute grants governing bodies the
authority to extend privileges to APRNs. For those hospitals that extend privileges to
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APRNs, the hospital must have a policy specifying a reasonable time period for
considering the application and provide written notice to the applicant of any final action
taken on the application, including any reason for denial or restriction of the privileges
requested, and afford an opportunity to appeal the decision. The policy must also include
rights when the APRN's privileges are modified or revoked, including written notice of the
action, reasons for the modification or revocation, and a mechanism for appeal.
Subsection 241.105 (d) allows hospitals to immediately revoke the APRN's privileges if
privileges are granted by the hospital based on a condition that the APRN has a
sponsoring or collaborating physician and the relationship between the APRN and
physician is terminated. The APRN and physician are required to notify the hospital that
the relationship has been terminated.
These statutory provisions are reflected in the Texas Hospital Licensing Rules. The
applicable provisions appear in full below.
25 TAC §133.41(f)(4)(C)(ii) (DSHS Rules)
(ii) The governing body is authorized to adopt, implement and enforce policies
concerning the granting of clinical privileges to advanced practice registered
nurses and physician assistants, including policies relating to the application
process, reasonable qualifications for privileges, and the process for renewal,
modification, or revocation of privileges.
(I) If the governing body of a hospital has adopted, implemented and
enforced a policy of granting clinical privileges to advanced practice registered
nurses or physician assistants, an individual advanced practice registered nurse
or physician assistant who qualifies for privileges under that policy shall be
entitled to certain procedural rights to provide fairness of process, as determined
by the governing body of the hospital, when an application for privileges is
submitted to the hospital. At a minimum, any policy adopted shall specify a
reasonable period for the processing and consideration of the application and
shall provide for written notification to the applicant of any final action on the
application by the hospital, including any reason for denial or restriction of the
privileges requested.
(II) If an advanced practice registered nurse or physician assistant has been
granted clinical privileges by a hospital, the hospital may not modify or revoke
those privileges without providing certain procedural rights to provide fairness of
process, as determined by the governing body of the hospital, to the advanced
practice registered nurse or physician assistant. At a minimum, the hospital shall
provide the advanced practice registered nurse or physician assistant written
reasons for the modification or revocation of privileges and a mechanism for
appeal to the appropriate committee or body within the hospital, as determined
by the governing body of the hospital.
(III) If a hospital extends clinical privileges to an advanced practice
registered nurse or physician assistant conditioned on the advanced practice
registered nurse or physician assistant having a sponsoring or collaborating
relationship with a physician and that relationship ceases to exist, the advanced
practice registered nurse or physician assistant and the physician shall provide
written notification to the hospital that the relationship no longer exists. Once the
hospital receives such notice from an advanced practice registered nurse or
physician assistant and the physician, the hospital shall be deemed to have met
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its obligations under this section by notifying the advanced practice registered
nurse or physician assistant in writing that the advanced practice registered
nurse's or physician assistant's clinical privileges no longer exist at that hospital.
(IV) Nothing in this clause shall be construed as modifying Subtitle B, Title
3, Occupations Code, Chapter 204 or 301, or any other law relating to the scope
of practice of physicians, advanced practice registered nurses, or physician
assistants.
(V) This clause does not apply to an employer-employee relationship
between an advanced practice registered nurse or physician assistant and a
hospital.
Texas law also requires hospitals that extend privileges to APRNs, to use the Texas
Standardized Credentialing Form. This is the same form that hospitals are required to
use for physicians. HMOs and PPOs are also required to use this application form for
APRNs, physicians, and physician assistants. For more information, refer to the statute,
§§1452.051 – 1452.052, Insurance Code.
Additional Resources
There is an article on the Advance for Nurse Practitioners website titled, “A Guide to
Clinical Privileges for NPs.” The article is brief and offers good advice.62 For APRNs
seeking privileges in hospitals, CNAP offers a manual titled, Credentialing and
Privileging Nurse Practitioners and Clinical Nurse Specialists in Texas Hospitals. The
manual includes comprehensive information on credentialing and privileging that APRNs
need to know and provides answers to questions APRNs and hospitals have about NP
and CNS practice in hospitals. The manual includes sample policies and procedures, as
well as a protocol modified for inpatient settings. To purchase this manual, go to
http://www.cnaptexas.org/displaycommon.cfm?an=1&subarticlenbr=27.
5.14 Comparisons of State Scopes of Practice for NPs
As discussed previsously, there is a difference between the professional scope of
practice based upon a nurse practitioner’s education and training versus the scope of
practice permitted within a particular state. Occasionally, NPs need to know the scope of
practice in another state. This is certainly true if living in a community that borders on
another state, the NP consults with patients who live in other states or if the NP
contemplates moving. In addition, when considering legislation that would change the
laws that govern NPs, Texas legislators often ask for information about the scope of
practice of NPs in other states. Therefore, it may be very helpful to have access to that
information.
The American College of Nurse Practitioners maintains links to this information from its
webpage, “Nurse Practitioner Scope of Practice.” Included are links to the 2007 report
and chart from the Center for the Health Professions at University of California, San
Francisco.63 There are also links to the most recent Pearson Report and the Annual
Legislative Update from The Nurse Practitioner.
5.15 Additional Resources for NPs and CNSs
NPs and CNSs should be aware that information provided in other sections of this APRN
Guide pertaining to CNMs or CRNAs, may also apply to their practices. The following is
a list of the most likely sections that may be helpful.
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 NPs and CNSs interested in being providers on managed care panels should refer to
the subsection on managed care in Section 7.15.
 NPs and CNSs specializing in women’s health or pediatrics should scan the CNM
Issues, Chapter 7. Many of the issues overlap with other APRNs in women’s health
practices. In addition, WHNPs and PNPs often work collaboratively with CNMs and it
can be very helpful to have a comprehensive understanding of the CNM’s practice.
 NPs & CNSs who order controlled substances in hospitals should refer to Section 6.10
that verifies that these practitioners are not required to have individual DPS and DEA
numbers.
 NPs & CNSs who have any reason to sedate patients, should refer to Section 6.11
that speaks to the limitations on RNs who are not CRNAs in administering certain
anesthetic agents.
 NPs & CNSs who order controlled substances for high percentage of their patients
need understand a law regulating certain pain management clinics. This law might
apply to other practices too, such as those specializing in psych – mental health. Refer
to Section 6.6.
In addition to the additional resources offered on credentialing & privileging in section
5.12, most NPs and CNSs will also need more information on reimbursement.

The CNAP website, www.cnaptexas.org, has a good section on reimbursement. It
explains most basic information APRNs need to know and answers the most common
questions. That website also has links to other sources on reimbursement. In addition,
this manual gives the basic information you need to research state and federal laws,
rules and policies.
 Other resources on reimbursement and starting a practice may be found on the
Internet. Just entering pertinent key words into search engines can yield excellent
results. Below are some suggested resources available on the Internet.
o Buppert, C. (September 2007). Billing for nurse practitioner services – Update 2007:
Guidelines for NPs, Physicians, Employers and Insurers. Last accessed at
http://www.medscape.com/viewarticle/562664. Look the 2008 version of this article
is expected in September 2008.
o Bock, L.W. (2008). Changing reimbursement policies. Advanced for Nurse
Practitioners. 16, 5, 21. Last accessed at http://nursepractitioners.advanceweb.com/Editorial/Search/AViewer.aspx?AN=NP_08may1_np
p21.html&AD=05-01-2008.
o Hill, B.P. (2008). How to make sure you get paid: Tales from the trenches. Advance
for Nurse Practitioners. 16, 3, 35. Last accessed at http://nursepractitioners.advanceweb.com/Editorial/Search/AViewer.aspx?AN=NP_08mar1_np
p35.html&AD=03-01-2008.
o Hill, B.P. (2008). Navigating rough tarrain: Steering around the rocky road of
reimbursement. Advance for Nurse Practitioners. 16, 9, 26. Last accessed at
http://nursepractitioners.advanceweb.com/Editorial/Search/AViewer.aspx?AN=NP_08sep1_npp
26.html&AD=09-01-2008.
175
o Heidesch, T. (April 1, 2008). On y own. Advance for Nurse Practitioners,
www.advanceweb.com. Last accessed at http://nursepractitioners.advanceweb.com/Editorial/Search/AViewer.aspx?CC=111161.
o Heidesch, T. (July 1, 2008). Developing a Reimbursement Model. Advance for
Nurse Practitioners, www.advanceweb.com. Last accessed http://nursepractitioners.advanceweb.com/Editorial/Search/AViewer.aspx?CC=117904.
176
177
178
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Chapter 6
Clinical Practice Issues for CRNAs
Key Points

Nurses began specializing in administering anesthesia over 110 years ago and the
first anesthesia educational program began in 1909.

CRNAs deliver 27 million anesthetics in the U.S. every year, and about 85% of
anesthetics in rural Texas hospitals. Eighty-two Texas counties depend upon CRNAs as
their only anesthesia providers.

The CRNA role includes preanesthetic, intraoperative and postanesthetic care for all
age groups. It also includes anesthesia related services such as pain management,
placement of central lines and participation in stabilizing critically ill patients.

All CRNAs, including those practicing in Texas on a multistate privilege, must be
licensed as an advanced practice registered nurse in the role of nurse anesthesia by the
Texas BON before delivering any anesthesia services.

CRNAs with certificate education are grandfathered and not required to obtain a
master's degree unless they fail to maintain their national certification and Texas APRN
license.

The scope of practice for CRNAs is defined in the AANA's "Scope and Standards for
Nurse Anesthesia Practice."

The limits of an individual CRNA's practice are based on the CRNA's competencies as
well as the scope of practice established by the AANA.

There is no difference in mortality rates when an anesthetic is administered by a
CRNA only, an anesthesiologist only, or a CRNA directed by an anesthesiologist.

The ordering of drugs and medical devices is a delegated medical act, but the
selection and administration of an anesthetic and provision of anesthesia related
services are independent nursing functions for CRNAs in the state of Texas.

Delegation of the ordering of drugs and devices for anesthesia and anesthesia related
services does not require delegation of prescriptive authority.

CRNAs that need to write prescriptions for patients must have delegated prescriptive
authority and protocols.

Pursuant to an order from a physician or dentist for anesthesia or an anesthesiarelated service by a CRNA, the CRNA may order all drugs, biologicals and medical
devices necessary to administer the anesthesia and maintain the patient in a
physiologically stable condition.

CRNAs may order and interpret diagnostic tests necessary to assess the patient.

APRNs may perform certain radiologic procedures, but only if they have additional
training required by law.
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
A BON position statement verifies that LVNs and RNs may accept orders from
APRNs.

CRNAs are not required to have a DPS Permit or DEA number to order Controlled
Substances, including Schedule II drugs.

RNs that are not CRNAs may administer local anesthetics and sedatives for moderate
sedation in accordance with the BON position statement.

Refer to the AANA Website for excellent resources for hospital privileging.

CRNAs who work under medical direction in the anesthesia care team model bill for
50% of the anesthetic and the anesthesiologist that is directing the care must complete
the seven TEFRA components of the anesthesia service to bill for the remaining 50%.

CRNAs must bill their services under their own provider numbers.

Reimbursement rates in public programs vary from 100% for Medicare and Texas
Worker's Compensation to 92% for the Texas Medicaid Program.

No federal or state statutes or rules require orders and documentation by CRNAs to
be co-signed.

APRNs, when signing any employment or contract for services, should be aware that
they need to protect their rights. The APRN should be represented by an attorney that is
familiar with APRN practice issues and the APRN should research additional sources to
determine elements that are important to include.

Non-physicians may not employ physicians except for certain health care
organizations certified by the Texas Medical Board. It is permissible for CRNAs to have
contractual agreements with physicians.

Physicians may not jointly own a practice with CRNAs.
Introduction
Nurse Anesthesia is a highly specialized advanced practice nursing role with a long
professional history. Therefore, practice issues for Certified Registered Nurse
Anesthetists (CRNAs) tend to be very different than those faced by NPs, CNSs, and
CNMs. This chapter addresses many of the practice issues that are unique to CRNAs,
and discusses the roles of various anesthesia providers.
6.1 The CRNA Role
The first nurse anesthesia educational programs started in 1909; 22 years after the first
record of a nurse having responsibility for the anesthetic care of a patient. Until after
World War II, nurse anesthetists were the primary professionals who administered
anesthesia. The first publication of studies related to anesthesia outcomes were
published between 1897 and 1906. The studies were conducted by a nurse anesthetist
at the hospital that would later become the Mayo Clinic. The American Association of
Nurse Anesthetists was established in 1931.64
In September 2009, there were 2,987 CRNAs authorized by the BON to practice in
Texas.lxxvi CRNAs still administer the majority of anesthetics delivered in the U.S. and in
Texas. According to AANA’s annual practice profile survey, CRNAs deliver
lxxvi
BON. APN by County. Accessed http://www.bon.state.tx.us/about/statistical.html.
181
approximately 30 million anesthetics annually in the United States. CRNAs are
especially important providers in rural Texas where CRNAs deliver about 85% of
anesthetics. In fact, many rural Texas hospitals would close if CRNAs were not
available. CRNAs are the only anesthesia providers in 82 Texas counties.65
Education and Standards for CRNA Practice
Nurse anesthesia programs are accredited by the Council on Accreditation of Nurse
Anesthesia Programs. There are 109 nurse anesthesia programs in the United States.
Five of the programs are is Texas. A list of nurse anesthesia programs is available on
the AANA’s Website.66 Student nurse anesthetists work an average of 1,694 clinical
hours and administer more than 790 anesthetics by the time of graduation.67
CRNAs were the first nursing professionals to require continuing education. AANA
established a certification program for nurse anesthetists in 1945, and recertification has
been mandatory since 1978.
AANA publishes the “Scope and Standards for Nurse Anesthesia Practice.” The
organization also publishes “Standards for Office-Based Anesthesia,” “Code of Ethics for
the Certified Registered Nurse Anesthetist,” and a number of other resources that
establish and guide the standard of care for CRNA practice.68
All CRNAs Must Seek APRN Authorization/APRN Licensure from the BON
Like all other advanced practice registered nurses in Texas, if a CRNA wishes to
practice in the state of Texas, they must receive appropriate license/s from the Texas
Board of Nursing. Because of the shortage of anesthesia providers, it is very common
for CRNAs from other states to work locum tenens in Texas. Even those CRNAs
practicing nursing in Texas on a multi-state privilege, must apply for and receive an
APRN license to practice as a CRNA before performing any anesthetics or anesthesia
related services in Texas.
There are some CRNAs in Texas that graduated from certificate programs and do not
have a master’s degree. As long as those CRNAs maintain certification and APRN
licensure to practice in Texas, those CRNAs are permanently grandfathered and may
continue to practice. However, CRNAs must be vigilant in maintaining their practice and
CE requirements. CRNAs that have not practiced within the last 4 years would have to
complete the AANA Refresher course and the associated clinical experience. Nurse
anesthetists usually find it almost impossible to complete the practice portion of the
refresher course because they do not have current authorization to practice and are not
students in an accredited nurse anesthesia program.
6.2 Scope of Practice and Competence.
While scope of practice is addressed in Chapter 1 (section 1.5), it is a critically important
topic and deserves further discussion. It is equally important for CRNAs to know the
limits of their competencies as it is their professional scope of practice. Likewise, it is
important for employers and the facilities that credential CRNAs to understand the full
range of the CRNA’s abilities. Facilities that fail to recognize the full capabilities and
scope of CRNA practice often under-utilize these highly skilled practitioners. In the
182
1990s it was estimated that utilizing CRNAs more efficiently could result in a savings to
the U.S. health care system of approximately $50,000,000 annually.lxxvii
The Services CRNAs Provide
CRNAs are educated to independently provide the full range of anesthesia services
including: general, regional (neuraxial, peripheral, and intraveneous), local and all levels
of sedation. CRNAs are experts in airway management, ventilation, and hemodynamic
stabilization. CRNA education also includes acute and chronic pain management.
CRNAs are highly skilled in a number of procedures including procedures to establish
vascular access (e.g insertion of central venous, pulmonary artery and arterial catheters)
and advanced airway techniques (e.g. fiberoptic or video-assisted intubation
techniques). AANA’s position statement entitled, “Certified Registered Nurse
Anesthetists’ Utilization of Invasive Monitoring Techniques” affirms that a number of
invasive procedures may be within a CRNA’s scope of practice. A complete list of
procedures and duties that CRNAs are educated to provide are included in the AANA’s
“Guidelines for Core Clinical Privileges” on the AANA Website. In addition the BON
issued a letter on April 17, 2006, verifying that pain management, including continuous
femoral nerve blocks are within the nurse anesthetist scope of practice.69
CRNAs Select & Administer Anesthesia as a Nursing Function
Unlike other advanced practice registered nurses (APRNs), CRNAs rarely require
delegated prescriptive authority. The selection and administration of the drugs and
devices necessary to administer anesthesia are independent nursing acts for CRNAs in
Texas. The only aspect of CRNA practice that must be delegated, the ordering of drugs
and medical devices, occurs when a physician or dentist gives an order for the CRNA to
administer the anesthetic.
On the national level, there are both historic and legal basis that support nursing’s
position that CRNA administration of anesthesia is an independent nursing function. lxxviii
In Texas, CRNAs also have an abundance of law that supports the fact that anesthesia
delivered by a CRNA has never been delegated medicine or a supervised act.
In 1995, a long standing agreement among the nursing and pharmacy boards became a
part of Texas law as follows.
§157.058, Texas Occupations Code
(a) In a licensed hospital or ambulatory surgical center, a physician may
delegate to a certified registered nurse anesthetist the ordering of drugs and
devices necessary for the nurse anesthetist to administer an anesthetic or an
anesthesia-related service ordered by the physician.
lxxvii
Estimates of potential annual cost savings are based on estimates on cost of education for
anesthesia providers and statistics on average salaries. Sources include: 1) Correspondence
from the director of Hospital Payment Policy, HCFA, to Kathleen A. Michels, RN, JD, Director of
Federal Government Affairs, AANA (July 27, 1992); 2) AANA (1996). 1995 AANA Membership
Survey; 3) Medical Group Management Association (July 1995). Physician Compensation and
Production Survey based on 1994 data.
lxxviii
Blumenreich, G.A. (October 2000). Legal Brief: Supervision. This article from the AANA
Website explains the historic and legal perspectives supporting nurse anesthesia as the practice of
nursing,
183
(b) The physician's order for anesthesia or anesthesia-related services is not
required to specify a drug, dose, or administration technique.
(c) Pursuant to the physician's order and in accordance with facility policies or
medical staff bylaws, the nurse anesthetist may select, obtain, and administer
those drugs and apply the medical devices appropriate to accomplish the order
and maintain the patient within a sound physiological status.
(d) This section shall be liberally construed to permit the full use of safe and
effective medication orders to use the skills and services of certified registered
nurse anesthetists.
In addition, the House sponsor of SB 673 (Acts of the 74th Texas Legislature),
Representative Hugo Berlanga, later wrote a letter dated May 5, 1997, confirming the
legislative intent of the above passage. The letter states (in part):
No where in SB 673 is CRNA practice designated as delegated medicine. Only
the ordering from the pharmacy of the drugs and devices necessary for the
CRNA to administer the anesthesia or perform an anesthesia related service is
delegated, and this may be delegated by any type of physician. The CRNA
practices in accordance with the Nurse Practice Act as further defined by the
Board of Nurse Examiner’s rule. Interpretation of SB 673 is to be liberally
construed to permit the full use of the skills and services of CRNAs. The
language also specifies that a physician who initiates an order for an anesthetic
is not liable for the acts of the CRNA by signing the order for an anesthetic.lxxix
In 1999, Texas Attorney General John Cornyn issued Opinion #JC-0117, further
affirming that while the ordering of drugs and devices was a delegated medical act, the
selection and administration of an anesthetic by a CRNA is a nursing act and does not
require physician supervision.70
A BON letter dated December 13, 2004, re-affirmed that the practice of CRNAs is the
practice of nursing. The second paragraph reads as follows.
The CRNA’s authorization to practice in an advanced practice role is derived
from the Nursing Practice Act and his/her educational preparation as a nurse
anesthetist. Like physicians, CRNAs are credentialed to practice in facilities (e.g.
hospitals or ambulatory surgical centers) by medical staff bylaws or institutional
policies. These policies do not constitute physician delegation. Section 301.002
of the Nursing Practice Act (Texas Occupations Code) provides a definition of
professional nursing that includes a statement that physician orders are required
to administer medications; however, when the nurse carries out the order, it
becomes a nursing act for which the registered nurse is responsible and
accountable. Thus, a CRNA must have a physician’s order to administer
anesthesia or an anesthesia-related service, but there is no requirement that the
order specify the drugs, dosages, or routes of administration because these
functions are with the CRNA’s scope of practice.71
lxxix
Letter from Chairman Hugo Berlanga to Dr. John Zerwas (May 5, 1997) confirming the
legislative intent of the language pertaining to CRNAs and the ordering of drugs and devices in
SB 673 (Acts of the 74th Texas Legislature. Last accessed at
www.txana.org/associations/8633/files/PD-BerlangaTSAletterNotdelegatedMedicine5-9-97.pdf.
184
6.3 Types of Anesthesia Providers
There are two types of qualified and licensed anesthesia providers currently providing
anesthesia in Texas: certified registered nurse anesthetists and anesthesiologists. The
scope and education of CRNA practice has already been described.
Anesthesiologists are MDs and DOs who complete a 4 year residency in anesthesia. It is
technically legal for physicians to deliver anesthesia without completing an anesthesia
residency, but facility credentialing criteria will require that residency. There is no legal
requirement for anesthesiologists to be board certified. As of May 2009, the Texas
Medical Board states that 4123 physicians licensed in Texas identify themselves as
specializing in anesthesiology.72
Many members of the public and the medical profession assume that anesthesia
delivered by an anesthesiologist is superior to that delivered by a CRNA. However, the
preponderance of research shows that there is no difference in anesthesia outcomes,
based on whether the anesthetic was provided by a CRNA only, an anesthesiologist
only, or a CRNA medically directed by an anesthesiologist.lxxx
In addition, there are approximately 20 anesthesiologist assistants (AAs) in Texas
working with anesthesiologists to administer anesthetics. These are unlicensed and
unregulated persons in Texas. AAs complete approximately two years of master’s level
education. There are currently five AA schools in the U.S. To be admitted, students are
not required to have any background in health care but they must have successfully
completed certain academic prerequisite courses that are similar to premed courses.
6.4 Aspects of CRNA Practice that Must Be Delegated
As discussed earlier, the ordering of drugs and devices necessary to administer the
anesthesia is the only aspect of CRNA practice that is actually delegated. There is a
legal difference between ordering and prescribing that is discussed in Chapter 4. It is
important for CRNAs to understand the difference, and be able to articulate that
difference to others with whom they work. There are also a couple of circumstances that
exist that may require a CRNA to have delegated prescriptive authority.
Situations in which CRNAs Require Delegated Prescriptive Authority
Medical diagnosis, prescribing and ordering prescription drugs are medical acts in the
state of Texas, and therefore require delegation. Just like other APRNs, CRNAs require
delegated prescriptive authority if they need to write prescriptions for patients who are
being discharged from the hospital or are in an outpatient setting. CRNAs that provide
lxxx
Pine, M, Holt, K.D., Lour, Y (2003). Surgical mortality and type of anesthesia provider.
American Association of Nurse Anesthetist Journal, 71, 109 – 116.
National Academy of Sciences, Hational Research Council (June 7, 1977). Report to Congress
entitled Health Care for American Veterans.(House Committee Print No. 36).
Forest, WH (1980). “Outcome- The Effect of the Provider, p 137 in Hirsh, RA, et al (eds). Health
Care Delivery in Anesthesia. Philadelphia: George F. Stickley Company.
Bechtoldt, A and the Anesthesia Study Committee (April, 1981). North Carolina Medical Journal.
185
chronic pain management are likely to need delegated prescriptive authority, unless the
CRNA simply consults on medication management and recommends drug therapy to the
referring physician or practitioner.
CRNAs that need to prescribe medications would be required to have an agreement of
collaboration and delegation for medical aspects of care with one or more physicians
(legally identified as “protocols”). While delegating the ability to establish a medical
diagnosis from the ICD Manual carries no particular supervisory requirement for the
physician, prescriptive authority does (See Chapter 4). The physician supervision is
based on the type of practice site. Other aspects of care an APRN provides are
rendered under the RN and APRN licenses as nursing acts. CRNAs that need to write
prescriptions must be very familiar with the information in Chapter 4 on Prescriptive
Authority.
On occasion, CRNAs may be asked to evaluate a patient residing in a long-term care
facility for anesthesia care for an upcoming surgery. This is more common in settings in
which a long-term care facility is attached to a hospital. There is certainly no problem
with a CRNA assessing a resident, but the CRNA needs to know that ordering drugs in a
long-term care (LTC) facility is very different than ordering drugs in a hospital. As
explained in the prescriptive authority chapter, drug orders in long-term care facilities are
filled by out-patient pharmacists. Therefore, writing an order in a LTC facility is just like
writing a prescription, and prescriptive authority is required. In addition, physicians
cannot delegate prescriptive authority for Schedule II Controlled Substances. Therefore,
a CRNA would not be able to write an order for a pre-operative medication as the CRNA
would in a hospital. Statutory and regulatory language regarding CRNA practice is
specific to hospital, ambulatory surgical centers, and outpatient settings. The language
never addresses long-term care facilities.
6.5 Doctors that May Order Anesthesia by a CRNA
CRNA practice in Texas requires delegation of ordering of drugs and devices necessary
to administer an anesthetic or provide an anesthesia related service. That order may be
given by dentists holding certification to administer the level of anesthetic being
provided, or by physicians (MDs and DOs).
CRNAs working with dentists should be familiar with the Board of Dentistry Rules
Chapter 108, Subchapter C (Professional Conduct, Anesthesia and Anesthetic Agents)
and Chapter 110 (Enteral Conscious Sedation). Rules 108.33 (h) and 110.3 (a) and
(e)(4) specifically require dentists working with CRNAs to have the appropriate training
and continuing education for the level of anesthesia being provided and to have a
current anesthesia permit for that level of anesthesia from the Texas State Board of
Dental Examiners. Therefore before working with any dentist, CRNAs should verify that
the dentist holds the appropriate permit.73
CRNAs should also remember that dental office settings are typically not accredited and
therefore, CRNAs would need to register the setting with the BON before administering
an anesthetic in a dental office (see the section on outpatient settings).
While CRNAs may practice with podiatrists, Texas law does not currently delegate the
ordering of drugs and devices necessary to administer the anesthetic. CRNAs
administering an anesthetic for a podiatrist would need to ensure that legal requirements
for the CRNA’s practice are met.
186
6.6 Settings in Which CRNAs Practice: When is Registration
Required?
CRNAs work in a variety of settings including hospitals, ambulatory surgical centers
(ASCs) and offices. In addition, the skills that CRNAs provide are applicable to a variety
of patients, not just those undergoing surgery.
Anesthesia Delivered in Hospitals and Amulatory Surgical Centers
The BON Rules on provision of anesthesia by CRNAs are organizaed based upon the
settings. Rule 221.15 addresses anesthesia and related services provided in hospitals
and ambulatory surgical centers.
22 TAC §221.15 Provision of Anesthesia Services by Nurse Anesthetists in Licensed
Hospitals and Ambulatory Surgical Centers
(a) In a licensed hospital or ambulatory surgical center, consistent with facility
policy or medical staff bylaws, a nurse anesthetist may select, obtain, and
administer drugs including determination of appropriate dosages, techniques and
medical devices for their administration and in maintaining the patient in sound
physiologic status pursuant to a physician's order for anesthesia or an
anesthesia-related service. This order need not be drug specific, dosage specific,
or administration-technique specific.
(b) Pursuant to a physician's order for anesthesia or an anesthesia-related
service, the nurse anesthetist may order anesthesia-related medications during
perianesthesia periods in the preparation for or recovery from anesthesia.
Another RN may carry out these orders.
(c) In providing anesthesia or an anesthesia-related service, the nurse
anesthetist shall select, order, obtain and administer drugs which fall within
categories of drugs generally utilized for anesthesia or anesthesia-related
services and provide the concomitant care required to maintain the patient in
sound physiologic status during those experiences.
This rule clearly grants the CRNA authority to select, obtain and administer any drugs or
medical devices necessary to provide anesthesia or an anesthesia-related service as
long as two conditions are met. 1) The service must be pursuant to a physician’s order,
and 2) the service must be delivered in accordance with the facility’s medical staff
bylaws.
Hospitals
While the most common setting in which CRNAs work is in a hospital surgical suite,
CRNAs often provide services throughout the hospital: in emergency rooms, critical care
units, interventional radiology suites, and on patient care units. CRNAs are educated in
airway management, ventilation, hemodynamic stabilization, and pain management.
Therefore the CRNA is often the most competent person to assist in an emergency or
insert a central venous or arterial line.
The Department of State Health Services’ (DSHS) adopted new hospital licensing rules
in June 2007. The rule on anesthesia services no longer refers to specific types of
anesthesia providers or to supervision of CRNAs as the old rules did. If hospital
administrators or any others refer to state hospital licensing rules that require
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supervision, be sure to refer them to the current rule, 25 TAC §133.41(a). The types of
providers who may administer anesthesia in Texas hospitals under this rule are
determined by the medical staff bylaws in each hospital.74
Ambulatory Surgical Centers
Ambulatory Surgical Centers (ASCs) are licensed by the Texas Department of State
Health Services (DSHS). An ASC is a “facility that primarily provides surgical services to
patients who do not require overnight hospitalization or extensive recovery, convalescent
time or observation….” The maximum length of stay in an ASC is 23 hours from the time
administration of the anesthetic begins.lxxxi The rule on anesthesia in an ASC is 25 TAC
§ 135.11.75 CRNAs who administer anesthesia in ASCs should be familiar with this rule.
As in the hospital licensing rules, the ASC rules adopted on June 18, 2009, do not
specify the provider types that may or may not provide anesthesia except for the
limitations placed on RNs who are not CRNAs (see Section 6.11). ASCs must document
the training of persons approved to administer anesthesia. The rules also specify the
professionals that may evaluate the patient before and after the anesthetic, as well as
before release from the ASC after an extended stay.
25 TAC §135.11(4) – (8)
(4) Only personnel who have been approved by the facility to provide anesthesia
services shall administer anesthesia. All approvals or delegations of anesthesia
services as authorized by law shall be documented and include the training,
experience, and qualifications of the person who provided the service. A qualified
registered nurse (RN) who is not a certified registered nurse anesthetist (CRNA),
in accordance with the orders of the operating surgeon, anesthesiologist, or
CRNA, may administer topical anesthesia, local anesthesia, minimal sedation
and moderate sedation, in accordance with all applicable rules, polices,
directives and guidelines issued by the Texas Board of Nursing. When an RN
who is not a CRNA administers sedation, as permitted in this paragraph, the
facility shall:
(A) verify that the registered nurse has the requisite training, education, and
experience;
(B) maintain documentation to support that the registered nurse has
demonstrated competency in the administration of sedation;
(C) with input from the facility's qualified anesthesia providers, develop,
implement and enforce detailed, written policies and procedures to guide the
registered nurse; and
(D) ensure that, when administering sedation during a procedure, the
registered nurse has no other duties except to monitor the patient.
(5) Anesthesia shall not be administered unless the operating surgeon has
evaluated the patient immediately prior to the procedure to assess the risk of the
anesthesia and of the procedure to be performed.
(6) The advanced practice registered nurse, the anesthesiologist, or the
operating surgeon shall be available until all of his or her patients operated on
that day have been discharged from the postanesthesia care unit.
25 TAC §135.2(5). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=
&pg=1&p_tac=&ti=25&pt=1&ch=135&rl=2.
lxxxi
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(7) Patients who have received anesthesia shall be evaluated for proper
anesthesia recovery by the operating surgeon or the person administering the
anesthesia prior to discharge from the postanesthesia care unit using criteria
approved by the medical staff.
(8) Patients who remain in the facility for extended observation following
discharge from the postanesthesia care unit shall be evaluated immediately prior
to leaving the facility by a physician, the person administering the anesthesia, or
a registered nurse acting in accordance with physician's orders and written
policies, procedures, and criteria developed by the medical staff.
Anesthesia in Outpatient Settings Requiring Registration
In 1999, S.B. 1340 established minimum standards for administration of anesthesia in an
office or other outpatient setting that is not part of a licensed hospital or ambulatory
surgical center. The Texas Legislature added §§301.601 - 301.607 to the Nursing
Practice Act requiring the BON to regulate anesthesia delivered by CRNAs in these
settings.76 Likewise, the Texas Medical Board regulates outpatient anesthesia delivered
by anesthesiologists.
BON Rule 221.16 implements the pertinent sections of the Nursing Practice Act.77 The
rule is detailed and requires CRNAs to meet the standards of the American Association
of Nurse Anesthetists (Standards for Office-Based Anesthesia).78 Rule 221.16 exempts
clinics and offices from registration if accredited by certain organizations or if only local
or peripheral nerve blocks are performed. All other outpatient sites are subject to
registration.
CRNAs who administer moderate or deep sedation, general anesthesia, or regional
nerve blocks in unaccredited outpatient settings are required to register those sites with
the BON in the Nurse Anesthesia Outpatient Registry. The application to register a site
in the Nurse Anesthesia Outpatient Registry is available on the APRN page of the BON
website.79 Any CRNA administering anesthesia in an outpatient setting should be very
familiar with BON Rule 221.16 and the AANA standards.
Pain Clinics that Must be Certified by the Medical Board
In 2009, SB 911 added a new Chapter 167 to the Medical Practice Act requiring the
Texas Medical Board to adopt rules by March 1, 2010, regulating certain pain
management clinics. Clinics and practices falling under the definition of “pain
management clinic” in the bill must apply to the Texas Medical Board for certification by
September 1, 2010.
Similar exemptions provided for both physicians and APRNs should eliminate the need
for any physicians and APRNs working in legitimate pain management clinics to register
their practices. However, it is vital for any practitioner who prescribes controlled
substances for a significant percentage of patients to understand the law.
The bill defines a pain management clinic as a “publicly or privately owned facility for
which a majority of patients are issued on a monthly basis a prescription for opioids,
benzodiazepines, barbiturates, or cariosoprodol (Soma®), but not including
suboxone.”lxxxii
lxxxii
SB 911, Acts of the 81st Texas Legislature. Page 1, lines 9-13. Accessed:
http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/SB00911F.pdf.
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All of the following types of facilities and practices are exempted from registering.
 medical or dental schools
 hospitals, including outpatient clinics
 hospices
 facilities operated by the state of Texas or the United States
 clinics owned by a physician or APN who treats patients in their areas of specialty
and also uses other forms of treatment
Pain management clinics must obtain a certificate from the TMB to operate and renew
the certificate periodically. These clinics may only be owned and operated by a medical
director who practices in Texas under an unrestricted Texas license. The physician must
review at least 33% of patient charts and be onsite at least 33 % of the clinic’s total
number of operating hours.
The bill was passed to give law enforcement an additional mechanism to identify and put
disreputable pain management clinics out of business. However, CNAP wanted to be
sure that no APRNs that were legitimately prescribing these medications for their
patients would be adversely affected. Therefore, CNAP obtained the amendment to
exempt APRNs who might meet the definition of owning or operating a pain
management clinic. (see page 2, lines 6 – 9 for specific language in the bill exempting
advanced practice nurses).
CRNAs that provide pain management services provide nerve blocks and other
modalities to address pain. Therefore, the exemption will allow CRNAs to continue
owning pain management clinics and exempt them from regulation under Chapter 167,
Occupations Code.
6.7 Including New Procedures in a CRNA’s Scope of Practice
This topic was briefly addressed at the end of Chapter 1, but deserves more explanation
since most CRNAs will need to learn new procedures or skills at some point in their
careers. This would include significant procedures not included in the basic nurse
anesthesia education program such as transesophegeal echocardiography (TEE) or
certain diagnostic and therapeutic procedures associated with pain management
services. In 2005, the BON posted Guidelines for Determining Scope of Practice on its
website.80 Every APRN in Texas should be familiar with the contents and incorporate
those guidelines into their practices.
The frequently asked questions associated with the scope of practice guidelines are
particularly informative. The final portion of the answer to the first question helps APRNs
understand the educational process required and documentation they need to maintain
when they become competent in a new procedure or skill.
Guidelines for Determining Scope of Practice FAQ # 1 (in part)
It is important to remember that there is more to this issue than simply learning
how to perform a particular procedure. Patient selection criteria, underlying
physiology and/or pathophysiology (depending on the nature of the procedure),
as well as indications for and contraindications to the procedure are among the
many concepts that are fundamental to learning a new procedure. The APRN
must also learn to respond to and manage (as appropriate) untoward
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events/adverse reactions/complications that may occur as a result of the
procedure. In many cases, on-the-job training will not include this type of content.
If you are ever required to defend your practice for any reason (whether to the
BON or any other entity), the defense will require providing evidence of
education/training and documentation of competence related to the specific
service you provided. As an advanced practice registered nurse you retain
professional accountability for any advanced practice nursing services you
provide [Rule 221.13(e)].
Each APRN who acquires new procedures and skills should maintain a portfolio that
includes their sources of knowledge (e.g. books, articles and continuing education
courses), as well as documentation of the training and ongoing proof of competency.
An informal process to expand competency is not always adequate. In Texas, there are
two functions that legally require specific training courses for APRNs who wish to
provide those services. APRNs who first assist at surgery or those who perform certain
radiologic procedures must be familiar with the requirements. While CRNAs are unlikely
to perform either of these functions, they must know what is required if they expand their
practices to include either function. For details, refer to section 5.3.
6.8 RNs and LVNs May Accept Orders from APRNs
BON Position Statement 15.18 permits nurses to take orders from APRNs. Since the
BON regulates all nurses, this position statement applies to both RNs and LVNs. If a
nurse or facility administrator questions the legality of accepting a CRNA’s order, refer
them to this position statement.
Nurses Carrying Out Orders from Advanced Practice Registered Nurses
BON Position Statement 15.18 (in part)
…The Board recognizes that in many settings, nurses and advanced practice
registered nurses work together in a collegial relationship. A nurse may carry out
an advanced practice registered nurse’s order in the management of a patient,
including, but not limited to, the administration of treatments, orders for laboratory
or diagnostic testing, or medication orders. A physician is not required to be
physically present at the location where the advanced practice registered nurse
is providing care. The order is not required to be countersigned by the physician.
The advanced practice registered nurse must function within the accepted scope
of practice of the role and specialty in which he/she has been authorized by the
Board.
As with any order, the nurse must seek clarification if he/she believes the order is
inappropriate, inaccurate, nonefficacious or contraindicated by consulting with the
advanced practice registered nurse or the physician, as appropriate. The nurse carrying
out an order from an APRN is responsible and accountable for his/her actions just as
he/she would be with any physician order.81
6.9 Orders Written by CRNAs
Pursuant to an order by a physician or dentist for anesthesia or an anesthesia related
service by a CRNA, the CRNA may order drugs and medical devices necessary to
administer anesthesia or an anesthesia related service. This includes Controlled
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Substances, Schedule II. In addition, CRNAs may order biologicals necessary to
maintain a patient in a sound physiologic state during the perioperative period, and the
diagnostic tests necessary to assess the patient during the perioperative period.
Diagnostic Tests
APRNs may order diagnostic testing as part of the assessment process. Federal CMS
Rule, 42 CFR 410.32(a)(3), clearly states that non-physician practitioners may order
diagnostic testing.
42 CFR 410.32. Diagnostic x-ray tests, diagnostic laboratory tests, and other diagnostic
tests: Conditions. (Federal CMS Rule)
(a) Ordering diagnostic tests. All diagnostic x-ray tests, diagnostic laboratory
tests, and other diagnostic tests must be ordered by the physician who is treating
the beneficiary, that is, the physician who furnishes a consultation or treats a
beneficiary for a specific medical problem and who uses the results in the
management of the beneficiary's specific medical problem. Tests not ordered by
the physician who is treating the beneficiary are not reasonable and necessary
(see Sec. 411.15(k)(1) of this chapter). …
(3) Application to nonphysician practitioners. Nonphysician practitioners
(that is, clinical nurse specialists, clinical psychologists, clinical social workers,
nurse-midwives, nurse practitioners, and physician assistants) who furnish
services that would be physician services if furnished by a physician, and who
are operating within the scope of their authority under State law and within the
scope of their Medicare statutory benefit, may be treated the same as physicians
treating beneficiaries for the purpose of this paragraph.82
While this federal regulation does not specifically name CRNAs in the list of
nonphysician practitioners, CRNAs are certainly providing “physician services” and may
order diagnostic tests under Texas law. According to the BON in a letter dated February
25, 2004, ordering laboratory, radiologic, and other diagnostic tests is permitted as part
of patient “observation, assessment, interventions, evaluation,….” See the BON letter at
the end of Chapter 5.
This is a very important issue for laboratories and other departments that perform
diagnostic testing. These departments may be audited and face substantial penalties if
they are billing for tests ordered by unqualified practitioners. Therefore, the letter
provided at the end of Chapter 5 is important verification that the Texas BON considers
ordering diagnostic tests and procedures to be within an APRN’s scope of practice.
If the laboratory or diagnostic test is in a hospital, the APRN will have to be
credentialed and privileged in that facility to order the service. The hospital’s medical
staff bylaws can legally exclude APRNs from having privileges in the hospital. However,
most hospitals in the state credential and privilege CRNAs. If your hospital does not, it is
possible to pursue a change. (See section 6.12. You can also contact
[email protected] or the Texas Association of Nurse Anesthetists for assistance.
Orders Written by a CRNA Do NOT Require Co-signature
There is nothing in federal or state law that requires orders by a CRNA to be co-signed.
There is also a letter from the BON dated March 20, 1995, that confirms CRNAs may
order various measures necessary to administer anesthesia and anesthesia related
services and that the BON does not require co-signature.83 It is not recommended that
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facility medical staff bylaws or policies impose a co-signature requirement. Cosignatures do not improve the quality of care and only serve to create liability where
there should be none.
6.10 CRNAs May Order Controlled Substances Without
Registering with DPS & DEA
Unless the CRNA’s practice requires prescriptive authority, the CRNA does not need to
have a Department of Public Safety (DPS) permit and DEA number. There is a very
helpful article on the AANA Website entitled, “Legal Briefs: Drug Enforcement
Administration Mid-level Practitioner Regulation,” confirming that CRNAs (and other
APRNs) who order controlled substances for administration in the facility are not
required to have individual DEA numbers.
Since that article was written, DEA rules more clearly delineate the DEA’s position and
clarify that practitioners such as APRNs, working in the normal course of professional
practice may administer, dispense or order drugs when practiticing in a facility or under
the authority of another individual registered with DEA.
21 CRF §1301.22 Exemption of agents and employees; affiliated
practitioners.
(a) The requirement of registration is waived for any agent or employee of a
person who is registered to engage in any group of independent activities, if such
agent or employee is acting in the usual course of his/her business or
employment.
(b) An individual practitioner who is an agent or employee of another
practitioner (other than a mid-level practitioner) registered to dispense controlled
substances may, when acting in the normal course of business or employment,
administer or dispense (other than by issuance of prescription) controlled
substances if and to the extent that such individual practitioner is authorized or
permitted to do so by the jurisdiction in which he or she practices, under the
registration of the employer or principal practitioner in lieu of being registered
him/herself.
(c) An individual practitioner who is an agent or employee of a hospital or other
institution may, when acting in the normal course of business or employment,
administer, dispense, or prescribe controlled substances under the registration of
the hospital or other institution which is registered in lieu of being registered
him/herself, provided that:
(1) Such dispensing, administering or prescribing is done in the usual course
of his/her professional practice;
(2) Such individual practitioner is authorized or permitted to do so by the
jurisdiction in which he/she is practicing;
(3) The hospital or other institution by whom he/she is employed has verified
that the individual practitioner is so permitted to dispense, administer, or
prescribe drugs within the jurisdiction;
(4) Such individual practitioner is acting only within the scope of his/her
employment in the hospital or institution;
(5) The hospital or other institution authorizes the individual practitioner to
administer, dispense or prescribe under the hospital registration and designates
a specific internal code number for each individual practitioner so authorized. The
code number shall consist of numbers, letters, or a combination thereof and shall
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be a suffix to the institution's DEA registration number, preceded by a hyphen
(e.g., APO123456-10 or APO123456-A12); and
(6) A current list of internal codes and the corresponding
individual practitioners is kept by the hospital or other institution and is made
available at all times to other registrants and law enforcement agencies upon
request for the purpose of verifying the authority of the prescribing individual
practitioner.84
Obviously, CRNAs and other APRNs who write prescriptions for controlled substances
for patients being discharged from a hospital or ASC would be required to have both
DPS and DEA numbers. For information on registering with these agencies, refer to the
article on the CNAP website, “Five Steps to Obtaining DPS and DEA Numbers.”
6.11 The Role of Other RNs in Administering Certain Anesthetic
Agents
CRNAs and other APRNs should be aware that RNs who are not authorized as nurse
anesthetists have a limited role in administering certain analgesic and anesthetic agents.
BON Position Statements 15.7 and 15.8 specifically address this issue. Position
Statement 15.7 addresses the ability of a LVN or RN to administer analgesic or
anesthetic agents via intrathecal or epidural catheters. LVNs are not permitted to
administer medications via these routes. However RNs may do so in accordance with
the board’s position statement and the facility’s standing medical orders.85
However, the Association of Women’s Health and Neonatal Nursing (AWHONN) has a
position statement entitled, “The Role of the Registered Nurse in Caring for Pregnant
Women Receiving Analgesia/Anesthesia by Catheter Techniques.”lxxxiii The statement
specifically advises RNs in obstetrical settings that they should not change the rate of
administration of medications via these routes. Therefore, RNs in OB settings will not
change infusion rates, even with an order from a physician or CRNA. The OB nurse is
permitted to stop the infusion.
BON Position Statement 15.8 permits RNs to administer certain agents used to induce
moderate sedation. However, the position statement warns RNs and non-CRNA
advanced practice registered nurses that the levels of anesthesia induced by analgesics
and anesthetic agents may vary among individuals, and states that administration of
certain anesthetic agents are not in the scope of practice for non-CRNA RNs except
under defined circumstances. In part, Position Statement 15.8 states the following.
Therefore, it is the position of the Board that the administration of anesthetic
agents (e.g. propofol, methohexital, ketamine, and etomidate) is outside the
scope of practice for RNs and non-CRNA advanced practice registered nurses
except in the following situations:
 when assisting in the physical presence of a CRNA or anesthesiologist
 when administering these medications as part of a clinical experience within an
advanced educational program of study that prepares the individual for
AWHONN Position Statement on RN’s Role in Caring for Pregnant Women Receiving
Analgesia/Anesthsia by Catheter Techniques (Epidural, Intrathecal, Spinal, PCEA Catheters). Last
accessed under the category “Childbearing: Pregnancy & Labor Management” at
www.awhonn.org/awhonn/content.do?name=05_HealthPolicyLegislation/5H_PositionStatements.htm
lxxxiii
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licensure as a nurse anesthetist (i.e. when functioning as a student nurse
anesthetist)
 when administering these medications to patients who are intubated and
mechanically ventilated in critical care settings
 when assisting an individual qualified in advanced airway management,
including emergency intubation procedures
While the physician or other health care provider performing the procedure may
possess the necessary knowledge, skills and abilities to rescue a patient from
deep sedation and general anesthesia, it is not prudent to presume this physician
will be able to leave the surgical site or abandon the procedure to assist in
rescuing the patient.
Ambulatroy surgical center rules on anesthesia care also limit the role of non-nurse
anesthetist RNs in providing anesthesia care as follows.
25 TAC §135.11(a)(4)(B)
(B) A qualified registered nurse (RN) who is not a certified registered nurse
anesthetist (CRNA), in accordance with the orders of the operating surgeon or an
anesthesiologist, may administer topical anesthesia, local anesthesia, minimal
sedation and moderate sedation, in accordance with all applicable rules, polices,
directives and guidelines issued by the Board of Nursing for the State of Texas.
When an RN who is not a CRNA administers sedation, as permitted in this
paragraph, the facility must:
(i) verify that the registered nurse has the requisite training, education and
experience;
(ii) maintain documentation to support that the registered nurse has
demonstrated competency in the administration of sedation;
(iii) with input from the facility's qualified anesthesia providers, develop,
implement and enforce detailed, written policies and procedures to guide the
registered nurse; and
(iv) ensure that, when administering sedation during a procedure, the
registered nurse has no other duties except to monitor the patient.34
6.12 Credentialing, Privileging & LIP Status of CRNAs
Credentialing is the process by which a health care facility or organization confirms that
health care providers are the persons they represent themselves to be and are likely to
provide safe health care services. The credentialing process involves completing an
application. Then the facility or organization verifies references, the provider’s licensure,
certification, education, and researches the past professional history and criminal
history. In Texas, both hospitals and managed care organizations are required to use the
standard credentialing application on the Texas Department of Insurance Website.86
Privileging is the process through which the health care practitioner is granted authority
to provide certain care and services to patients within the health care facility. The
application for privileges is separate from the credentialing application and is unique to
each facility.
Hospital
Because most CRNAs administer anesthesia in hospitals, they need hospital privileges.
Whether CRNAs are permitted to have privileges in a particular facility depends upon
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that facility’s medical staff bylaws. No hospital in Texas is required to grant privileges to
any type of APRN. However, if the hospital does grant privileges to CRNAs, hospital
licensing law requires the hospital to afford each CRNA who applies certain due process
rights.
§ 241.105, Health & Safety Code. HOSPITAL PRIVILEGES FOR ADVANCED
PRACTICE REGISTERED NURSES AND PHYSICIAN ASSISTANTS.
(a) The governing body of a hospital is authorized to establish policies
concerning the granting of clinical privileges to advanced practice registered
nurses and physician assistants, including policies relating to the application
process, reasonable qualifications for privileges, and the process for renewal,
modification, or revocation of privileges.
(b) If the governing body of a hospital has adopted a policy of granting clinical
privileges to advanced practice registered nurses or physician assistants, an
individual advanced practice registered nurse or physician assistant who qualifies
for privileges under that policy
shall be entitled to certain procedural rights to provide fairness of process, as
determined by the governing body of the hospital, when an application for
privileges is submitted to the hospital. At a minimum, any policy adopted shall
specify a reasonable period for
the processing and consideration of the application and shall provide for written
notification to the applicant of any final action on the application by the hospital,
including any reason for denial or restriction of the privileges requested.
(c) If an advanced practice registered nurse or physician assistant has been
granted clinical privileges by a hospital, the hospital may not modify or revoke
those privileges without providing certain procedural rights to provide fairness of
process, as determined by
the governing body of the hospital, to the advanced practice registered nurse or
physician assistant. At a minimum, the hospital shall provide the advanced
practice registered nurse or physician assistant written reasons for the
modification or revocation of privileges and a mechanism
for appeal to the appropriate committee or body within the hospital, as
determined by the governing body of the hospital.
(d) If a hospital extends clinical privileges to an advanced practice registered
nurse or physician assistant conditioned on the advanced practice registered
nurse or physician assistant having a sponsoring or collaborating relationship
with a physician and that relationship ceases to exist, the advanced practice
registered nurse or physician assistant and the physician shall provide written
notification to the hospital that the relationship no longer exists. Once the
hospital receives such notice from an advanced practice registered nurse or
physician assistant and the physician, the hospital shall be deemed to have met
its obligations under this section by notifying the advanced practice registered
nurse or physician assistant in writing that the advanced practice registered
nurse's or physician assistant's clinical privileges no longer exist at that hospital.
(e) Nothing in this section shall be construed as modifying Subtitle B, Title 3,
Occupations Code, Chapter 204 or 301, Occupations Code, or any other law
relating to the scope of practice of physicians, advanced practice registered
nurses, or physician assistants.
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(f) This section does not apply to an employer-employee relationship between
an advanced practice registered nurse or physician assistant and a hospital.37
The medical staff bylaws in a few hospitals in Texas require a sponsoring physician in
order for a CRNA to be privileged in the facility. However, CRNAs should know that
there is no state, federal or accreditation requirement that necessitates a sponsoring
physician.
For details on the privileges that most CRNAs should be granted, see AANA’s
“Guidelines for Core Clinical Privileges” on the AANA Website.87 CNAP also has a
manual on Credentialing and Privileging NPs and CNSs in Texas Hospitals that
encompasses Texas laws and rules. In 2008, CNAP will publish an expanded version
entitled, Credentialing and Privileging APRNs in Texas Hospitals. This version will
include a chapter devoted to CRNAs. All CNAP publications are available for purchase
and download from the Coalition for Nurses in Advanced Practice (CNAP) Website,
www.cnaptexas.org/estore/publications.asp. To learn more about legal rights when a
facility denies or withdraws clinical privileges, refer to “Legal Briefs: Fairness in
Credentialing and the Certified Registered Nurse Anesthetist”. 88
CRNAs Can Be Licensed Independent Practitioners (LIPs)
In earlier state operations manuals for hospitals, CMS defined Licensed Independent
Practitioner (LIP) as follows: Any individual permitted by law and by the hospital to
provide patient care services without direction or supervision, within the scope of his or
her license, and in accordance with individually granted clinical privileges. Since CRNAs
are not supervised in Texas, the Joint Commission (formerly JCAHO) accepts hospital
bylaws that allow CRNAs in Texas to be privileged as members of the medical staff. For
those hospitals that credential CRNAs as allied health practitioners, the bylaws may
allow privileging for CRNAs without supervision or sponsorship by a physician.lxxxiv
Each hospital has the right to determine the categories of practitioners that will be
granted privileges within that facility, and under what circumstances, so there is no legal
recourse if a particular hospital refuses to privilege CRNAs or requires them to be
supervised. However, CRNAs should be aware of the resources that are available to
support changes in hospitals that maintain these restrictions. In addition to the Joint
Commission letter cited above, the Texas Association of Nurse Anesthetists (TANA) has
other documents on its website confirming that CRNAs are not required to be
supervised. One of these is the letter from the BON cited previously. The letter states
that anesthesia provided by a CRNA is the practice of nursing and therefore does not
require supervision.lxxxv
Managed Care
Certain types of health insurance plans contract with providers to form networks through
which those insured by the health plan receive the majority of their health care services.
In general, those health plans are preferred provider organizations (PPOs) and health
maintenance organizations (HMOs). Since CRNAs are the only anesthesia providers in
Letter from Joint Commission to Sandra Tunajek (November 12, 2003), explaining surveyors’
procedure in determining LIP status in hospitals, was last accessed at
http://www.txana.org/associations/8633/files/PD-JCAHOConclusion11-12-03.pdf on September 7, 2008.
lxxxv
TANA practice documents were last accessed at
http://www.txana.org/displaycommon.cfm?an=1&subarticlenbr=2 on September 7, 2008.
lxxxiv
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many hospitals in Texas and CRNA anesthesia services have long been recognized to
be equivalent to those provided by anesthesiologists, most health plans already accept
CRNAs in their networks. However, if the CRNA encounters difficulty, he/she needs to
know that there may be legal recourse.
All HMOs (§843.312, Insurance Code) and PPOs (§1301.052, Insurance Code) in Texas
should contract with APRNs because there are provisions in HMO and PPO law similar
to the following.
An insurer offering a health benefit plan may not refuse a request made by a
physician participating as a provider under the plan and an advanced practice
registered nurse or physician assistant to have the advanced practice registered
nurse or physician assistant included as a provider under the plan if:
(1) the advanced practice registered nurse or physician assistant is
authorized by the physician to provide care under Subchapter B, Chapter 157,
Occupations Code; and
(2) the advanced practice registered nurse or physician assistant
meets the quality of care standards previously established by the insurer for
participation in the plan by advanced practice registered nurses and physician
assistants.89
Subchapter B, Chapter 157, Occupations Code, is the section of the Medical Practice
Act that deals with a physician delegating prescriptive authority to an APRN or PA.
Therefore, the physician making the request must already be in the HMO’s or PPO’s
provider network and have a relationship with the APRN that would qualify for delegation
of prescriptive authority. In the case of a CRNA, the physician could be a surgeon or
anesthesiologist that works with the CRNA. The reference to pre-established quality of
care standards does not allow a PPO or HMO to refuse admission to the APRN because
the company does not have standards established for APRNs. It also does not permit
the health plan to establish unreasonable standards.
There are articles and model letters on the Coalition for Nurses in Advanced Practice’s
(CNAP’s) Website that may help APRNs take steps to be credentialed by health plans
and added to their provider networks. Please contact [email protected] if a PPO or
HMO refuses a physician’s request to add the CRNA to their provider network after
taking reasonable steps to be admitted to the plan’s provider network. In some
situations, Lynda may be able to help, and CNAP tries to track companies that are not
complying with the law. In certain situations, it also may be appropriate to file a
complaint with the Texas Department of Insurance (TDI).
There is no central databank to find information on how certain health insurance plans
reimburse APRNs. However, TDI does have a searchable databank of HMOs that
provides the ability for APRNs to find all the HMOs by county. Information on companies
offering PPO , HMO and many more health plans is available at
http://www.tdi.state.tx.us/consumer/colists.html.
6.13 Anesthesia Department Requirements
No hospital is required to have an anesthesia service. However, if it does, certain federal
and state requirements must be met.
Federal CMS Conditions of Participation (CoPs) and Texas licensing rules for
ambulatory surgical centers (ASCs), hospitals, and critical access hospitals require that
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a qualified physician must direct the anesthesia department. None of the rules requires
the physician performing this service to be an anesthesiologist. In addition, other
requirements for anesthesia departments are included in state and federal rules.
A chief of an anesthesia service can be a CRNA, but the qualified physician must be
appropriately involved in certain aspects of department oversight. For example, the
physician must approve the anesthesia department’s policies and procedures and the
physician must approve and have an ongoing role in the department’s quality assurance
process. The anesthesia department’s quality assurance must be integrated with the
entire facility’s quality assurance process. For all requirements for hospitals, see Federal
rule, 42 CFR §482.52. The interpretive guidelines for this rule are in Attachment A of the
CMS State Operations Manual. The federal rule that includes anesthesia in critical
access hospitals (CAHs) is the surgical services rule, 42 CFR §485.639. The rule on
anesthesia in ambulatory surgical centers is also included in the ASC surgical rule, 42
CFR §416.42.lxxxvi
6.14 Anesthesia Care Team Model and the TEFRA 7
The anesthesia care team is a model of care by which anesthesiologists actively
participate in the patient’s care. In addition, the physician may be present for the most
critical portions of administering the anesthetic. If all seven of the requirements for
medical direction (the TEFRA 7) are met, then the anesthesiologist may bill for 50% of
the anesthetic and the CRNA bills for the other 50%. If the physician does not complete
the seven essential components, then the service is usually billed under the CRNA’s
name. The physician still has the option of billing for supervising the anesthetic, but
overall reimbursement tends to be lower so this option for billing is rarely used. In
practices using the anesthesia care team model, both parties usually reassign their
benefits to the anesthesia group.
Medical direction
The Medical Direction portion of the anesthetic service dates to passage of the Tax
Equity and Fiscal Responsibility Act (TEFRA) of 1982. TEFRA ended passive billing for
medical direction and required physicians complete certain aspects of care when billing
for medical direction. In addition, anesthesiologists are not permitted to direct more than
four surgeries simultaneously.90 A final ruling issued in 1998 by the Healthcare Finance
Administration (now CMS), titled “Conditions for Payment: Anesthesiology Services”
further impacted the requirements to bill for medical direction.91 In order to be paid by
Medicare for medically directing a CRNA, the physician must fulfill certain criteria in each
case. The Conditions for Payment require that the physician state that he or she
participated in all of the following seven elements in the care of the patient:
1. Perform a preanesthesia examination and evaluation;
2. Prescribe the anesthesia plan;
3. Personally participate in the most demanding aspects of the anesthesia plan
including, if applicable, induction and emergence;
4. Ensure that any procedure in the anesthesia plan that he or she does not
personally perform are performed by a qualified individual;
5. Monitor the course of anesthesia administration at frequent intervals;
lxxxvi
The links to the Code of Federal Regulations citations provided are 2007. When posted, updated
versions may be accessed at http://www.access.gpo.gov/nara/cfr/cfr-table-search.html#page1. Scroll to and
select “42 Public Health”, then select the most recent year posted, and then the appropriate part and section.
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6. Remain physically present and available for immediate diagnosis and treatment
of emergencies;
7. Provide indicated postanesthesia care.
It should be emphasized that medical direction is not a standard of care or required by
any regulatory or accrediting body in any state. It is simply a CMS billing option for
anesthesiologists who elect to complete the TEFRA 7. It allows the anesthesiologist to
bill for 50% of four concurrent anesthetics, and therefore anesthesiologists can produce
up to 200% of the revenue that could be produced if the anesthesiologist personally
provided the anesthetic.
6.15 Documenting the Standard of Care in Anesthesia
As in all health care practices, documentation is a cornerstone of practice. Not only does
accurate and complete documentation improve patient safety, it is any practitioner’s best
defense in case of a poor outcome. AANA offers excellent guidance titled “Documenting
the Standard of Care: The Anesthesia Record,” The document includes sample
records.92 However, considering the fact that there are two professional organizations
setting standards for its anesthesia professionals, it is not surprising that other issues
surrounding documentation often arise.
Referencing the Appropriate Professional Standard of Care
The BON requires that CRNAs meet the standards of care established by the American
Association of Nurse Anesthetists (AANA). However, sometimes CRNAs refer to the
standard of another profession when completing documentation, and they unwittingly are
undermining their own profession when they do so. Professionals use the standards
created by their own profession. If CRNAs refer to American Society of
Anesthesiologists (ASA) rather than the AANA standards, they are mistakenly making
ASA the “brand name” for all anesthesia standards.
Just as each CRNA should proudly point to the BON as the sole state agency that
regulates CRNAs in Texas, each CRNA should be equally consistent about referring to
AANA standards in their documentation and in their conversations with other providers.
The ASA sets the standards of care for anesthesiologists, and the AANA sets the
standards of care for CRNAs.
Likewise, anesthesia department policies and medical staff bylaws in facilities where
both types of anesthesia providers are on staff should refer to both the AANA and ASA
standards. The BON rules require CRNAs to meet AANA standards. There is no option
for CRNAs to use another standard.
Documentation by APRNs Does NOT Require Physician Co-signature
Occasionally APRNs are told that their documentation must be co-signed by a physician.
Just as is the case with other APRNs, there is nothing in federal or state law that
requires orders and documentation written by a CRNA to be co-signed. As a matter of
fact the opposite is true. Texas state law directs state agencies to accept the
documentation of an APRN (including CRNAs) that a service was provided as long as
the service was within the APRN’s scope of practice. In 1999, S.B. 1131 added
§301.152(d) to the Nursing Practice Act. Subsection (d) states:
(d) The signature of an advanced practice registered nurse attesting to the
provision of a legally authorized service by the advanced practice registered
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nurse satisfies any documentation requirement for that service established by a
state agency.93
The intent of this provision is to assure hospitals and other facilities that no physician cosignatures are necessary and that a service will be reimbursed as long as the service is
in the practitioner’s scope of practice.
Documenting Fulfillment of TEFRA 7
Occasionally anesthesiologists will ask the CRNA to document that the anesthesiologist
has met the TEFRA 7 requirements. CRNAs should know that it is the sole responsibility
of the anesthesiologist to document that he/she completed these components of care.
The CRNA’s affirmation that the anesthesiologist met the requirements is not adequate
documentation.
6.16 Reimbursement by Certain Public Health Care Programs
Reimbursement is a broad topic that could easily encompass an entire manual. The only
information included in this section is basic information on rates, rules and provider
enrollment for the major public programs. Additional information on reimbursement is
available on the AANA and CNAP websites.
There are other issues impacting reimbursement that are discussed in other sections of
this chapter. The CMS requirement for physician supervision of CRNAs in facilities
participating in the Medicare and Medicaid programs is discussed in section 6.17 on optout. Billing by anesthesiologists for medical direction is discussed in the section on
employment issues, section 6.18.
Medicare and the NPI
Medicare reimburses CRNAs at 100% of the physician’s fee. The CMS rule on
Conditions of Participation for CRNAs is 42 CFR §410.69.94 CMS sets the standards for
billing, and since billing for anesthesia services is unique, CMS has an anesthesia
section on its website.95 In addition, AANA has an excellent practice document entitled,
“Medicare Reimbursement” that explains the history of Medicare reimbursement for
CRNAs and includes basic information on reimbursement as a sole anesthesia provider
and as a medically directed or supervised service.50
To apply to be a Medicare provider, go to the TrailBlazerhealth website (After clicking
the previous link, you must read and agree to the copyright agreement on use of CPT
codes before accessing this portion of the TrailBlazer Website.) TrailBlazer is the
Medicare carrier for the state of Texas.96
CRNAs in Texas are required to be a Medicare provider in order to be a Texas Medicaid
provider. In addition, all providers are required to have a National Provider Identifier
(NPI) used as the identifying number by all health plans after May 23, 2008.
Medicaid
The Texas Medicaid Program reimburses all APRNs at 92% of the physician’s fee. While
Medicaid rules are liberal in allowing delegating physicians to bill for other APRNs’
services, that is not the case for CRNAs. CRNAs must bill for their services under their
own provider numbers. However, the benefits (payment) can be reassigned to a
physician, provider group, or hospital.
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The Health & Human Services Commission (HHSC) is the state agency responsible for
administering the Texas Medicaid Program. HHSC rules on CRNA participation in
Medicaid are 1 TAC §354.1301 - §354.1302. The rule specifying the 92%
reimbursement rate is 1 TAC §355.8221. CRNAs that are Medicaid providers should be
familiar with the applicable rules and with applicable portions of the Texas Medicaid
Provider Manual. This manual reflects both HHSC Rules and HHSC policies.
The Texas Medicaid and Healthcare Partnership (TMHP) contracts with HHSC to be the
fiscal intermediary for the Texas Medicaid Program and several other state health
programs. The Medicaid Provider Manual may be downloaded from the TMHP website,
www.tmhp.com/default.aspx. The manual includes details on requirements for CRNA
Medicaid providers and billing the Texas Medicaid Program for anesthesia services.
Indigent Care
Texas counties are required to provide some health care for indigent residents that do
not reside in a hospital district. However, if the surgery in not an emergency, CRNAs
should ensure that the county in which the patient resides covers services provided by
CRNAs. Unfortunately, APRN services in the County Indigent Health Program are on the
list of optional services. (See §61.0285, Health & Safety Code.)97
This categorization as optional services allows counties to count payments to APRNs
toward the 8% counties are required to spend in order to be eligible for state funds.
However, counties are only required to cover services provided by a physician. As a
result, those counties that do not come close to reaching the 8% threshold will deny
reimbursement to CRNAs and other APRNs, even if the services were provided in an
emergency. For more information on the County Indigent Health Program, go to the
DSHS Web page, www.dshs.state.tx.us/cihcp/default.shtm. CRNAs that are denied
payment should contest the failure to reimburse by every means available in that county
and notify staff of the County Indigent Health Program. Also notify Lynda Woolbert by
email, [email protected].
Texas Workers’ Compensation
The Texas Workers’ Compensation system reimburses CRNAs at 100% of the
physician’s fee. This reimbursement rate resulted from a lawsuit filed in 1991, Cause No.
91-10359, The Texas Association of Nurse Anesthetists, et al. v. Texas Workers’
Compensation Commission. TANA filed the lawsuit in response to rules in which the
(then) Texas Workers’ Compensation Commission tried to pass rules reimbursing
CRNAs at 80% of the physician’s fee. In the end, TANA prevailed.
In 2005, Texas Workers’ Compensation (TWC) became a division of the Texas
Department of Insurance (TDI). For more information on the current TWC system and
reimbursement for health care providers, refer to TDI’s Workers’ Compensation Website,
www.tdi.state.tx.us/wc/indexwc.html.
6.17 The Opt-Out
All CRNAs should understand the option that the federal government has given the
states to opt-out of the Medicare requirement for physician supervision for CRNAs
administering anesthesia for Medicare and Medicaid clients. On December 19, 1997, the
federal agency that administered the Medicare Program (then HCFA and now CMS)
proposed a federal rule that would have removed the Medicare requirement for
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physician supervision of CRNAs and deferred to state law on the issue of supervision.
The rule that was in effect (just like the current rule) did not require that the supervising
physician have any expertise in delivering anesthesia, and HCFA staff determined
evidence demonstrated no difference in quality of anesthesia care delivered by a CRNA
acting independently, an anesthesiologist, or a CRNA supervised by an anesthesiologist
(let alone a physician who had no expertise in anesthesia).
On the last day of the Clinton Administration, President Clinton approved this rule for
final adoption. However, any rules approved within the last days before a new President
takes office may be rescinded by the following administration. President Bush put the
implementation of all the rules approved during this time on hold until his administration
could review each one. Unfortunately, heavy lobbying by both anesthesiologists who
opposed the rule and CRNAs who favored it resulted in a compromise approach that
was reflected in the final rule.
The final rule was adopted in the Federal Register on November 13, 2001 (page
56762).98 The final rules on conditions of participation for ambulatory surgical centers
(42 CFR §416.42), hospitals (42 CFR §482.52), and critical access hospitals (42 CFR
§485.639), maintained the current physician supervision requirement for CRNAs.lxxxvii
That means CRNAs billing Medicare and Medicaid for anesthesia services would have
to be supervised by a physician. In many cases, this supervisory responsibility falls on
the surgeon who has no special education in anesthesia. However, a new provision was
added to the rule permitting Governors to opt-out of the supervision requirement if this
would be consistent with state law and in the best interest of persons residing in the
state. As stated previously in this chapter, Texas state law does not require physician
supervision and the Governor has the option to opt-out of the physician supervision
requirement.
According to the final rule, governors are required to fulfill the following step to opt-out of
the Medicare supervision requirement. The state’s governor:
 consults with the state's boards of medicine and nursing about issues related to
access to and the quality of anesthesia services in the state;
 determines it is in the best interests of the state's citizens to of the current
federal physician supervision requirement;
 determines the is consistent with state law; and
 sends a letter to CMS attesting that the above requirements were met and that
the state opts out of the federal physician supervision requirement for CRNAs.
The opt-out goes into effect immediately when the governor sends the letter.
To date, 14 states have opted out of the federal supervision requirement. Unfortunately,
Texas is not one of those states. As a result, nothing changes for CRNAs in Texas. The
good news is that CMS does not define supervision and, if consistent with facility bylaws,
the requirement can be general supervision and the CRNA can perform and bill for all
elements of the anesthetic (in the same manner as an unsupervised and undirected
CRNA) . For more information on the , see the AANA Website.99
lxxxvii
CFR citations. Accessed: http://www.gpoaccess.gov/cfr/retrieve.html.
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6.18 Employment Issues and Contracts
Beginning practice as a CRNA is exciting and creates some anxiety for most new
CRNAs. Even CRNAs with lots of experience can make some bad practice choices.
However knowing the questions to ask a prospective employer and knowing what to look
for can make work life transitions much easier.
As a first step, we strongly recommend that CRNAs refer to The Business of Anesthesia:
Practice Options for Nurse Anesthetists by Jeannette Mannino. This book is available for
purchase from the AANA Bookstore.100 While this reference does not offer information
that is specific to Texas, many employment and business issues are not dependent on
the state in which the APRN practices.
The Anesthesia Care Team Versus Unsupervised Practice
One issue that every CRNA faces is deciding whether to be part of an anesthesia group
that delivers care in the anesthesia care team model or to deliver care without medical
direction or anesthesiologist supervision. Some CRNAs feel very comfortable working in
the anesthesia care team model, especially those with less experience.
There is no right or wrong in the degree to which a physician chooses to supervise a
CRNA, as long as the physician meets the requirements for the level of service the
anesthesiologist bills. However, it is very important that the CRNA is comfortable with
the physician’s level and style of supervision. While close supervision may be reassuring
to some CRNAs, it may be frustrating to a CRNA with extensive experience.
While most CRNAs that participate in the anesthesia care team model are employed by
physician-owned anesthesia groups or hospitals, under certain circumstances, it is also
possible for CRNAs to be independent contractors while participating in this model of
care. For more information on this issue, see the article on the AANA Website, “Legal
Brief: Can a CRNA be Medically Directed and an Independent Contractor for Tax
Purposes at the Same Time?”101
Whether employed or self-employed, CRNAs also have the option of providing
unsupervised anesthesia. Primarily, these opportunities are available in small cities and
rural communities. However, CRNAs in large cities also contract with physicians who do
office-based procedures that require anesthesia. CRNAs that are confident in their skills
and abilities often find unsupervised practice settings the most fulfilling, particularly if
they have good business skills and enjoy living in smaller communities. It is not
uncommon for CRNAs to form their own anesthesia groups, and earning potential is the
highest for independent CRNAs of all APRNs.
Tips on Contracting
CRNAs, whether employed or practicing independently, face the challenge of signing a
contract. It is important to remember that a pre-written contract has been written by the
attorney representing the prospective employer or hospital. The contract is structured to
protect the employer or hospital, not the CRNA. It is your job to protect yourself.
While there is nothing inherently wrong with signing a pre-written contract after careful
review, it is very ill-advised to sign a contract without someone who represents your
interests reviewing the contract. Unless the CRNA is very familiar with contracts and the
provisions that should be included, that person should be an attorney who is familiar with
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business contracts, health care law, and APRNs. Even attorneys have other attorneys
review contracts because it is so difficult for the parties involved to separate what is
actually on the written page from their intentions.
What the contract says, not what was discussed
It is difficult to create a document in which the written communication accurately reflects
the intention of the parties involved. It is wise for CRNAs to remember that the court will
enforce the plain language of a contract even if one of the parties contends that the
contract does not say what was intended. If the language is ambiguous, then the court
will hear testimony on the intent of both parties, but it is far better for the contract to
clearly articulate the intent of both parties than to find oneself in court because the intent
was not clearly stated.
Non-Competitive Clauses
One of the most common, troublesome provisions that employers try to include in
contracts are clauses that forbid a CRNA from providing CRNA services in the same
geographic area for a certain amount of time if the CRNA chooses to terminate.
Retaining such clauses should be carefully considered by the CRNA, and the CRNA
should always remember that such issues can be negotiated to modify or remove the
provision.
There are two Legal Briefs articles that will give CRNAs more information on noncompetitive clauses and their enforceability. The first article is “Covenants Not to
Compete” and the second is “Nurse Anesthetists in the Middle: Covenants Not to
Compete.”102
6.19 Responding to Concerns about Vicarious Liability
Concerns about vicarious liability can take different forms. Sometimes, physicians who
want to work with CRNAs are hesitant to do so because anesthesiologists or physician’s
attorneys incorrectly tell the physician that the physician will be held liable for the acts of
the CRNA. This is not true unless the physician had an active role in the patient’s
anesthetic care. Physicians are not liable for the care a CRNA renders simply because
the physician delegates prescriptive authority or orders an anesthetic by a CRNA. As a
matter of fact, Texas law specifically states that a physician is not liable simply because
he or she delegated prescriptive authority (or order an anesthetic delivered by a CRNA)
unless the physician knows that the CRNA is not qualified. Section 157.060, Texas
Occupations Code, states as follows.
§ 157.060. PHYSICIAN LIABILITY FOR DELEGATED ACT
Unless the physician has reason to believe the physician assistant or advanced
practice registered nurse lacked the competency to perform the act, a physician
is not liable for an act of a physician assistant or advanced practice registered
nurse solely because the physician signed a standing medical order, a standing
delegation order, or another order or protocol authorizing the physician assistant
or advanced practice registered nurse to administer, provide, carry out, or sign a
prescription drug order.103
In other cases, vicarious liability becomes an issue in malpractice insurance.
Periodically, medical malpractice insurance companies try to impose a surcharge on
physicians who work with CRNAs. TANA has done an excellent job of successfully
fighting such attempts in the past. The fear that predicates such surcharges has never
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been based on actual increased costs incurred by the malpractice carrier due to
physicians working with CRNAs. It is very important to copy and save any letter received
from a malpractice carrier threatening to impose a surcharge or drop malpractice
insurance for a physician working with a CRNA. Please notify TANA or
[email protected] immediately if this occurs to any physician working with a CRNA.
For additional information on this topic, refer to the article, “Legal Briefs: Liability of a
Surgeon When Working with a Nurse Anesthetist.”
6.20 CRNA-Owned Practices
CRNAs may own their own practices in Texas. In fact, because most CRNAs do not
have to have delegated prescriptive authority, it allows them more opportunity to have
independent practices than other types of APRNs in Texas. Sometimes CRNAs and
anesthesiologists also want to form business relationships. CRNAs contemplating
businesses that include anesthesiologists need to be aware of particular Texas laws that
will prove to be stumbling blocks.
Texas law does not allow reimbursing the physician for his/her time by slitting fees or
paying a certain percentage of your profits to a delegating physician. It is also illegal for
an APRN to employ a physician. (See section below for additional information.) It is
possible for the APRN and physician to each own their own businesses and share office
space, as long as the contract is clearly structured so it does not violate provisions in
Texas law that prevent different types of professionals from jointly owning businesses.
These contractual issues are complicated and the attorneys that develop contracts for
an APRN-owned business must be knowledgeable about health law and structuring
businesses in Texas. The APRN should be represented by an attorney who is familiar
with helping APRNs structure their businesses. If an attorney is not familiar with the
doctrine of “the prohibition against the corporate practice of medicine” without doing
research, then that is probably not the right attorney to write the contract and represent
your interests.
APRNs May Not Employ a Physician
Chapter 162 of the Medical Practice Act (§§162.001 -162.051 and §§162.201 – 162.206)
limits the employment options for physicians to entities owned or operated by other
physicians or certain health care organizations certified by the Texas Medical Board.
Therefore, a non-physician, including APRNs, may not employ a physician.104
Physicians and APRNs May Not Jointly Own a Practice or Split Fees
Physicians are not just limited in the type of employment they may accept, but also in the
type of business relationships they can form. Some prohibitions in Texas law also affect
an APRN’s ability to form a business relationship with another type of other licensed
health care provider.
The Business Organizations Code requires owners or partners in a professional entity to
be licensed to provide the same professional service as is rendered by that professional
entity. In other words, Texas law prevents formation of businesses for professional
purposes by different professionals unless specifically permitted by statute..lxxxviii
§§301.003 and 301.006, Business Organizations Code. Accessed
http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.301.htm#301.003.
lxxxviii
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Business organizations of any type are also expressly prohibited if it would violate any
other state law (e.g. Medical Practice Act).lxxxix
The Corporate Practice of Medicine
Texas prohibits the "corporate practice of medicine.” The Texas Medical Board (TMB)
explains this legal doctrine on its website and offers legal citations that support the
doctrine. In part, the TMB explains the prohibition as follows.
A general summary of the corporate practice of medicine doctrine is that it
prohibits physicians from entering into partnerships, employee relationships, fee
splitting, or other situations with non-physicians where the physician's practice of
medicine is in any way controlled or directed by, or fees shared with a nonphysician. Generally, physicians may enter into independent contractor
arrangements with non-physicians. However, whether an independent contractor
situation exists is a question of law and attendant facts.xc
Physicians and APRNs can form partnerships to own the building and equipment, but
not to co-own the practice. An APRN or physician may own the building individually and
rent office space to the other person, but splitting any patient fees or profits of the
practice are prohibited. As discussed previously, physicians may consultant with an
APRN under a contract for professional services. However, any sharing of professional
fees, even on a percentage basis, is probably not permitted.
An article on the AANA Website entitled, “Legal Briefs: Professional Corporations” may
be helpful in considering the options that a CRNA might have in forming a business. 105
However, it is important to remember that this article does not pertain specifically to
Texas, and any CRNA forming a business in Texas should do so using an attorney
familiar with Texas business and health care law.
Advertising
APRNs may advertise their practices, but there are legal restrictions on the way in which
one may represent him/herself or the practice. Not only is it unprofessional conduct to
make false statements, it is also illegal to mislead the public. The APRN should avoid
any reference to offering “medical” services or having a “medical” practice. Those are
terms that denote a physician is providing the services. The APRN should not only
include the APRN’s appropriate initials after his/her name, but it is advisable to spell out
what those initials mean. While this is not required by any law or rule, APRN advertising
is under scrutiny and most members of the public do not know what CRNA means
unless those initials are explained in words.
If one also has an academic (e.g. Ph.D, DSN, or DrPH) or professional doctoral degree
(DNP) then the APRN may also use “Dr.” before his or her name. However, if one
chooses to use the title, “doctor,” one must clearly indicate the source from which that
title is being used. It is illegal to infer that one might be a MD or DO in any use of titles in
advertising or other professional capacity. It is even illegal to use the academic degree,
M.D. or D.O., if one has that degree but is not licensed by the Texas Medical Board.
Business Organizations Code, §§2.003 – 2.004. Accessed:
http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.2.htm#2.003.
xc
TMB. Corporate Practice of Medicine. Accessed: http://www.tmb.state.tx.us/rules/guidelines/cpq.php.
lxxxix
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The Nursing Practice Act and BON rules are not particularly helpful for nurses on the
subject of advertising. The statutory provision, §301.153, Texas Occupations Code,
simply prohibits the BON from establishing any prohibitions on advertising except for that
which is deceptive, false or misleading.106
As indicated in Section 2.9, there are rules that apply to all health professionals on
advertising, and using the title, “Doctor.” These rules are in §102.004 and §§104.003 –
104.004, Texas Occupations Code. In addition, APRNs must understand the difference
between advertising and soliciting patients. Soliciting patients for your practice, or for
another practitioner’s practice, constitutes unprofessional conduct. For more information,
read all of Chapters 102 and 104, Texas Occupations Code.107
It is also important for APRNs to know the forms of communication that might constitute
advertising. The definition of “advertising” in the Texas Medical Board rules clearly
explains that business cards and nameplates are considered to be forms of advertising.
To read the definition of advertising in 22 TAC §164.2 and find other rules on advertising
for physicians, go to 22 TAC §164. While these rules do not pertain to APRNs, they can
offer appropriate guidelines for advertising your practice.108
.
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Chapter 7
Practice Issues for CNMs
Key Points

Nurse-midwives began practicing in the U.S. in 1929.

Nurse-midwives are educated in two different professions: midwifery and nursing.

CNMs have an outstanding record of outcomes in significantly reducing rates of
cesarean section births and low birth weight infants.

The CNM role encompasses women's healthcare throughout the lifespan, especially
focusing on care during pregnancy, childbirth and the postpartum period. The role also
includes care of the infant during the first month of life.

The scope of practice for CNMs is defined in the ACNM's "Core Competencies in
Basic Midwifery Practice" and "Standards for the Practice of Midwifery."

Approximately 350 CNMs are authorized to practice in Texas.

CNMs with certificate education are grandparented and not required to obtain a
master's degree unless they fail to maintain their national certification and BON
authorization.

The limits of an individual CNM's practice are based on the individual CNM's
competencies.

CNMs may provide or order controlled substances, Schedule II, for their patients
during labor and the immediate postpartum period, not to exceed 48 hours.

CNMs may first assist for C-Section births if they complete a first assisting continuing
education course approved by ACNM, or have such experience in their basic program.

CNMs that wish to perform certain ultrasound procedures may need additional
education and training, but are not required to take courses for unlicensed persons
performing radiologic procedures.

APRNs may delegate administration of immunizations to unlicensed personnel, but
they may not delegate administration of prescription drugs to unlicensed persons.

A BON position statement verifies that LVNs and RNs may accept orders from
APRNs.

A CNM is legally required to file the birth certificate for the birth of infants the CNM
attends within five days.

A CNM may declare death (as can any RN) and may sign the certificate of fetal death
(stillbirth).

CNMs are legally required to educate parents on certain issues affecting the health of
their baby and offer certain screening services for the newborn.


Birthing centers must be licensed by the DSHS Division of Facility Licensing.
As of September 1, 2009, birthing center facility fees are only indirectly reimbursed
by the Texas Medicaid Program through a CNM.
209

Planned home birth is a safe alternative for low-risk women in the care of a CNM.

Hospitals are not required to privilege CNMs, but if the hospital does extend privileges
to CNMs, it must give the CNM certain rights.

The Texas Medicaid Program reimburses CNMs at 92%, but physicians also have the
option of billing for services provided by CNMs using the SA modifier and receiving
100%.

APRNs should protect their rights in any employment or contract for services that they
sign. The APRN should be represented by an attorney that is familiar with APRN
practice issues and the APRN should research additional sources to determine elements
that are important to include.

The concept of vicarious liability is a myth and CNMs should report situations in which
it is being used as a barrier to CNM practice.

Non-physicians may not employ physicians except for certain health care
organizations certified by the Texas Medical Board.

Physicians may not jointly own a practice with CNMs.
Introduction
Nurse-Midwifery is a highly specialized role with a long professional history. In Texas,
Certified Nurse-Midwives (CNMs) are recognized as a type of advanced practice
registered nurse (APRN). Practice issues for CNMs are often very different than those
faced by NPs, CNSs, and CRNAs. This chapter explains the role of the nurse-midwife,
and clarifies the differences and similarities between the direct entry licensed midwife
(usually a non-nurse) and the certified nurse-midwife. Most importantly, the chapter
focuses on the practice issues that are distinct to CNMs and offers basic information that
every CNM practicing in Texas needs to know.
7.1 The CNM Role and Profession
Nurse-midwives were brought to the United States in response to alarmingly high rates
of infant and maternal mortality. Mary Breckinridge, the nurse who founded the Frontier
Nursing Service (FNS) in eastern Kentucky, brought British nurse-midwives to FNS in
1929.
The first nurse-midwifery educational program was started by the Maternity Center
Association (MCA) (now Childbirth Connection) in New York City. This organization
began in 1918 to address the problem of poor pregnancy outcomes and improve the
health of mothers and infants. MCA looked at foreign countries with records of
outstanding maternal and child health. In these countries, the nurse-midwife was the
predominant maternity health care provider. They saw that these specialty nurses might
be the answer to America's growing maternal and infant mortality problems. The first
class of nurse-midwives graduated in 1933. The Frontier School of Midwifery was
established in 1939. By 1955, the year that the American College of Nurse-Midwives
was formed, there were seven nurse-midwifery educational programs in the U.S.xci
xci
ACNM. A Brief History of Nurse-Midwives in the U.S. at www.mymidwife.org/history.cfm.
More historical and general information on CNMs may be accessed at
www.nlm.nih.gov/medlineplus/print/ency/article/002000.htm .
210
Midwifery is the Core of the CNM’s Philosophy of Care
Certified Nurse-Midwifery is the intersection of two distinct professions: nursing and
midwifery. There are professional and certified midwives who are not nurses. In Texas,
those health care providers are referred to as “licensed midwives” and are regulated by
the Texas Midwifery Board under the Department of State Health Services Division of
Professional Licensing and Certification.109 For a table that compares various aspects of
practice for licensed midwives and CNMs, see the table at the end of this chapter.
The roots of the midwifery profession go back centuries. Today, the word, midwifery,
indicates a philosophy of care that focuses on the needs of women, offers a variety of
birth options, minimizes unnecessary intervention, and involves women in making
educated health care decisions that are best for them and their families. The Code of
Ethics of the American College of Nurse-Midwives affirms that CNMs “promote a just
distribution of resources and equity to access to quality health services.”xcii
The terms and expressions that nurse-midwives use are based on the midwifery
profession, and sometimes offend other nurses who are more familiar with the medical
model of women’s health care. CNMs talk about “catching the baby” rather than
“delivering the baby.” This expression perfectly encompasses the heart of the midwifery
philosophy. CNMs see mothers as the persons who deliver the baby. The CNM is
attending the woman during labor and delivery as a coach to promote a natural process
and to respond to any signs of complications to ensure the safety of both mother and
baby. The mother is the person doing the work of delivering the baby, not the midwife.
CNMs help mothers position themselves in ways that facilitate the natural labor process.
They research best practices and integrate that research into their practices.
Outcomes of Nurse-Midwifery Care
CNMs are educated to independently assess a woman throughout pregnancy and
determine her level of risk and to refer to an obstetrician if needed. CNMs can also
independently determine if a woman is a candidate for a home or birthing center birth.
Certified nurse-midwives are highly respected for their documented ability to reduce csection rates by more than half and significantly reduce the incidence of infant mortality
and low birth weight infants. Numerous studies over the past 30 years show that CNM
care results in excellent outcomes and document the ability of nurse-midwives to
independently manage about 80% of all perinatal (including prenatal, delivery, and
postpartum) care and up to 85% of the family planning and gynecological needs of
women of all ages.110 A study conducted by the National Center for Health Statistics and
the Centers for Disease Control and Prevention published in 1998 showed a 19%
reduction in infant mortality and 31% reduction in low birth weight infants resulting from
nurse-midwifery care.xciii
These outstanding results are even more striking when considering the fact that CNMs
care for a disproportionate number of culturally diverse and socio-economically
xcii
ACNM Code of Ethics. www.midwife.org/siteFiles/education/Code_of_Ethics_June_2005.pdf.
MacDorman, M.F., Singh, G.K. (1998). Midwifery care, social and medial rish factors, and birth
outcomes in the USA. J Epidemiology& Community Health, 52, 310-317. Last accessed at
http://jech.bmj.com/cgi/reprint/52/5/310.pdf.
National Center for Health Statistics (1998) issued a press release with a summary of findings,
http://www.cdc.gov/nchs/pressroom/98news/midwife.htm.
xciii
211
disadvantaged women.xciv Another study, published in the Journal of Epidemiology and
Community Health in 2000, compared the births of indigent and Medicaid mothers
participating in a nurse-midwifery program with similar women giving birth during the
same time in the same county. After adjusting for maternal age and race, the women in
the nurse-midwifery program had a dramatically reduced risk of giving birth to a low birth
weight (35% to 55%), or very low birth weight (55% - 65%) infant.xcv
Public Citizen’s Health Research Group produced two reports in 1995 about the
advantages of nurse-midwifery care. The first report is titled, “Nurse Midwives: Delivering
a Better Childbirth Experience,” delineates the options offered by CNMs and advises
consumers on accessing CNM care and advocating for more access to CNMs. 111 A
separate report titled, “Encouraging the Use of Nurse-Midwives: A Report for
Policymakers,” calls for increasing the numbers and utilization of CNMs and makes
specific recommendations for policy changes that will result in better access to CNM
care.xcvi
Nurse-Midwifery in Texas
Unfortunately, repeated recommendations to make nurse-midwifery the primary model of
care for low risk women in the United States have been ignored, particularly in Texas. In
2005, approximately 6,200 certified nurse-midwives practiced in all 50 states. About 350
of those CNMs are authorized to practice in Texas. In 2002, CNMs attended 307,527
deliveries in the U.S. (about 10 percent of births that year). That same year, CNMs
attended 4.7 percent of the births in Texas (about 17,500 births). Approximately 96% of
all CNM attended births in Texas occurred in hospitals.
The prospects for access to nurse-midwifery care in Texas are even dimmer in the next
few years. Nurse-midwifery in Texas is now threatened by the recent closure of the four
CNM educational programs in Texas. The last of those programs, the Texas at UT
Southwestern School of Medicine, closed in 2006. Fortunately, Baylor University Louise
Herrington School of Nursing in Dallas openned a new CNM program in fall 2008. This
program will lead to a Doctorate of Nursing Practice. Despite the encouraging sign of a
new CNM program, nurse-midwifery in Texas is still threatened. It is alarming that the
model of health care for women that offers the most promise of saving lives and saving
health care dollars is the most threatened.
What are the Settings in Which CNMs Practice?
CNMs work in a wide variety of settings such as clinics, hospitals, medical offices, and
their own private practices. The majority of CNM assisted births (approximately 96%) are
in hospitals but CNMs also deliver in birthing centers and homes. For more information
xciv
Declercq, E.R., Williams, D.R., Koontz, A.M., Paine, L.L., Streit, E.L., & McCloskey, L. (2001).
Serving women in need: nurse-midwifery practice in the United States. Journal of
Midwifery Women’s Health, 46, Issue 1, 11-16. Abstract last accessed at
http://www.jmwh.com/article/S1526-9523(00)00091-X/abstract.
xcv
Visintainer P.F., Uman J., Horgan K., Ibald A., Verna U., and Tejani, N. (2000). Reduced risk of low
weight births among indigent women receiving care from nurse-midwives. J Epidemiology & Community
Health, 54, 233-238. Last accessed at http://jech.bmj.com/cgi/reprint/54/3/233.pdf.
xcvi
Gabay M. & Wolfe S.M. (1995). Encouraging the Use of Nurse-Midwives: A Report for Policymakers
Public Citizen’s Health Research Group.
212
on birthing centers and planned home delivery, see the section on out-of-hospital birth
settings in this chapter.
Education and Standards for CNM Practice
Nurse-midwifery programs are accredited by the Accreditation Commission for Midwifery
Education (formerly ACNM Division of Accreditation). There are 38 nurse-midwifery
programs in the United States. A list of nurse-midwifery programs is available on the
ACNM’s Website.112 In order to sit for the nurse-midwifery certification exam, every
nurse-midwife must graduate from an ACNM accredited program using set criteria for
evaluation of curriculum, faculty and program organization among other factors. This
creates a high level of consistency among CNM education programs. By 2010, all CNM
education will occur at the graduate level. 113
ACNM publishes the “Core Competencies for Basic Nurse Midwifery Practice.” These
are the competencies that all nurse-midwives must demonstrate before graduating from
a nurse-midwifery program, and the minimum set of competencies that all CNMs
possess. The document on core competencies also refers to two other documents:
“Standards of the Practice of Midwifery” and “The Code of Ethics”. Links to all of the
standards setting documents are on the ACNM Website. In addition, ACNM has a
number of position statements that also guide CNM practice.114
Certification and Continuing Certification Maintenance
ACNM established a certification program for nurse-midwives in 1971 and started
requiring certification maintenance for all CNMs in active practice in 1986. In 1991, the
American Midwifery Certification Board (AMCB) assumed the certification and
recertification functions. In Texas, every CNM graduating after January 1, 1996, must
be certified by AMCB.
Certification and accreditation are separate activities; however, they often intersect. For
example, a graduate from an ACME accredited program is eligible to sit for the
certification examination offered by AMCB. Because of the length of time that the
certification process has been in existence, and the integrity of the psychometrics, and
the consistency of the system, AMCB certification is highly respected. Since most
facilities and states require certification; almost all graduates from an ACME-accredited
program take the AMCB examination. As with most certification boards, there are
specific requirements as to how long a graduate remains a candidate to become certified
after graduation.
7.2 Issues Regarding APRN Licensure for Some CNMs
Like all other advanced practice registered nurses in Texas, if a CNM wishes to practice
in the state of Texas, she must receive an APRN license from the Texas Board of
Nursing. Even CNMs who live in New Mexico or Arkansas and work in Texas on a multistate privilege RN license, must apply for and receive an APRN license to practice as a
CNM in Texas.
There are special issues for CNMs that do not have a master’s degree in nursing. As of
January 1, 2007, all new CNMs authorized to practice in Texas have been required to
have a master’s degree. It is particularly important for CNMs who do not have a master’s
degree to renew both their RN license and APRN license on time and fulfill all
requirements to maintain that licensure. For those CNMs who graduated after January 1,
1996, this includes being certified by AMCB.
213
All CNMs certified after January 1, 1996, also must participate in the ACNM’s
Certification Maintenance Program (CMP). For those CNMs who passed the certification
exam prior to December 31, 1995, participation in the CMP program is optional. These
CNMs may participate in either the AMCB’s CMP or ACNM’s Continuing Competency
Assessment (CCA) program.
7.3 Scope of Practice and Competence
While scope of practice is addressed in Chapter 1 (section 1.5), it is a topic of critical
importance and deserves further discussion. The majority of complaints and law suits
against APRNs, that result in a finding of fault against the APRN, stem from an APRN
exceeding his/her scope of competence and failing to meet the standard of care. It is
also important for CNMs, employers and the facilities that credential CNMs to
understand the scope of CNM practice so that CNM services can be utilized as
efficiently as possible.
The first paragraph of ACNM’s “Standards of Practice of Midwifery” comprises the
general statement that describes the scope of practice of the CNM. The statement reads
as follows.
Midwifery practice as conducted by certified nurse-midwives (CNMs) and
certified midwives (CMs) is the independent management of women's health
care, focusing particularly on pregnancy, childbirth, the post partum period, care
of the newborn, and the family planning and gynecologic needs of women. The
CNM and CM practice within a health care system that provides for consultation,
collaborative management, or referral, as indicated by the health status of the
client. CNMs and CMs practice in accord with the Standards for the Practice of
Midwifery, as defined by the American College of Nurse-Midwives (ACNM). xcvii
The scope of practice is further described in another ACNM document, “Certified NurseMidwives and Certified Midwives as Primary Care Providers / Case Managers.”
Care by CNMs and CMs includes preconception counseling, care during
pregnancy and childbirth, provision of gynecological and contraceptive services
and care of the peri- and post-menopausal woman. With health education as a
major focus, the goals are to prevent problems and to assist women in
developing and maintaining healthy habits.xcviii
For a more specific delineation of a CNM’s scope of practice, refer to both of the ACNM
documents the “Core Competencies for Basic Nurse Midwifery Practice” and the
“Standards of the Practice of Midwifery.”115
Most of the CNM’s practice is independent and medicine cannot legally claim care of
healthy women as the exclusive practice of medicine. Courts have ruled that midwifery is
a separate profession and is not the practice of medicine or nursing. Therefore the care
of pregnant women and women giving birth cannot be claimed as the exclusive domain
xcvii
ACNM. (2003). Standards for the Practice of Midwifery. Last accessed at
http://www.midwife.org/display.cfm?id=485.
xcviii
ACNM. (1997). Certified Nurse-Midwives and Certified Midwives as Primary Care
Providers/Case Managers. Last accessed at
http://www.midwife.org/siteFiles/position/CNMs_&_CMs_as_PCP_05.pdf
214
of any particular profession.xcix When a CNM is practicing nurse-midwifery in Texas, the
CNM is practicing nursing. When a physician is providing those same health care
services, the physician is practicing medicine; and when a licensed midwife provides
those services, she is practicing midwifery.
The Texas Board of Nursing affirms that CNMs may assess that a woman is pregnant,
care for the woman throughout the pregnancy, attend the woman and infant during
childbirth, and render postpartum care for the woman and for the infant during the
newborn period independently.c It is the CNM’s responsibility to identify complications
and refer or co-manage the patient with a physician, as required. In addition, like a
women’s health care nurse practitioner, performing well woman exams throughout the
life span, ordering appropriate laboratory tests and performing certain common
diagnostic tests are also part of the CNM’s independent scope of practice. CNM practice
often incorporates herbal and homeopathic remedies; recommending those remedies is
also part of the CNM’s independent practice. However, Texas requires physician
delegation for some aspects of the APRN’s practice, as described below.
Aspects of CNM Practice in Texas that Must Be Delegated by a Physician
Diagnosis of a medical condition (e.g. urinary tract infection or sexually transmitted
disease) and prescribing and ordering prescription drugs are medical acts in the state of
Texas, and therefore require delegation from a physician. Just like NPs and CNSs,
CNMs are required to have an agreement of collaboration and delegation with one or
more physicians to provide those medical aspects of care (legally identified as
“protocols”).
While delegating the ability to make a medical diagnosis from the ICD Manual carries no
particular supervisory requirement for the physician, prescriptive authority does. For
APRNs, that is also accompanied by physician supervision based on the type of practice
site. As discussed previously, other aspects of care the CNM provides are rendered
under the RN license and advanced practice authorization/APRN licensure as nursing
acts.
CNMs without prescriptive authority can still easily incorporate a statement into their
agreement for collaboration, consultation and referral that states the physician delegates
the authority for the CNM to make all medical diagnoses that are within the CNM’s scope
of practice. If the physician is also delegating prescriptive authority to the CNM, then
CNM’s collaborative agreement with the physician must also include the components
necessary for delegation of prescriptive authority as outlined in CNAP’s Sample Practice
Agreement Protocol at the end of Chapter 4.
Ordering or Administering Controlled Substances, Schedule II
There is a special provision in the Medical Practice Act that permits physicians to
delegate the provision of Controlled Substances, Schedule II, to their patients during
labor and in the immediate postpartum period, not to exceed 48 hours. While CNMs
rarely utilize Schedule II drugs for their patients, it is permissible for them to do so. The
BON interprets the provision of these drugs to also include the ordering of the drugs in
hospital settings.
xcix
The North American Registry for Midwives documents court decisions that affirm midwifery is
a separate model of care from medicine or nursing. Last accessed at
http://www.narm.org/practiceofmidwifery.htm
c
J. Zych. (personal communication, December 21, 2006)
215
It should be noted that the 48 hour limitation is only required by law to pertain to
Schedule II, Controlled Substances. Other controlled substances may be delegated by
the physician and are only subject to the restrictions that apply to delegation of
Controlled Substances, Schedules III – V, as specified in 22 TAC §193.6(n)(2).
The language in the Medical Practice Act that permits delegation of Schedule II drugs is
copied below. There is also a similar provision, 22 TAC §193.6(l), included in the Texas
Medical Board Rules.
§ 157.059, Occupations Code (Medical Practice Act). DELEGATION REGARDING
CERTAIN OBSTETRICAL SERVICES.
(a) In this section, "provide" means to supply, for a term not to exceed 48
hours, one or more unit doses of a controlled substance for the immediate needs
of a patient.
(b) A physician may delegate to a physician assistant offering obstetrical
services and certified by the board as specializing in obstetrics or an advanced
practice registered nurse recognized by the Board of Nursing as a nurse midwife
the act of administering or providing controlled substances to the physician
assistant's or nurse midwife's clients during intrapartum and immediate
postpartum care.
(c) The physician may not delegate the use of a prescription sticker or the use
or issuance of an official prescription form under Section 481.075, Health and
Safety Code.
(d) The delegation of authority to administer or provide controlled substances
under Subsection (b) must be under a physician's order, medical order, standing
delegation order, or protocol that requires adequate and documented availability
for access to medical care.
(e) The physician's orders, medical orders, standing delegation orders, or
protocols must require the reporting of or monitoring of each client's progress,
including complications of pregnancy and delivery and the administration and
provision of controlled substances by the nurse midwife or physician assistant to
the clients of the nurse midwife or physician assistant.
(f) The authority of a physician to delegate under this section is limited to:
(1) three nurse midwives or physician assistants or
their full-time equivalents; and
(2) the designated facility at which the nurse midwife or physician
assistant provides care.
(g) The controlled substance must be supplied in a suitable container that is
labeled in compliance with the applicable drug laws and must include:
(1) the patient's name and address;
(2) the drug to be provided;
(3) the name, address, and telephone number of the physician;
(4) the name, address, and telephone number of the nurse midwife
or physician assistant; and
(5) the date.
(h) This section does not authorize a physician, physician assistant, or nurse
midwife to operate a retail pharmacy as defined under Subtitle J.
216
(i) This section authorizes a physician to delegate the act of administering or
providing a controlled substance to a nurse midwife or physician assistant but
does not require physician delegation of:
(1) further acts to a nurse midwife; or
(2) the administration of medications by a physician assistant or
registered nurse other than as provided by this section.
(j) This section does not limit the authority of a physician to delegate the
carrying out or signing of a prescription drug order involving a controlled
substance under this subchapter.
ACNM Requires CNMs to Establish Certain Practice Guidelines &
Agreements for Collaboration and Consultation
It should also be noted that, while the practice of nurse-midwifery is considered to be an
independent practice in many respects, ACNM Standard V requires that every CNM has
arrangements for collaboration and referral. Standard V is quoted below.
STANDARD V. MIDWIFERY CARE IS BASED UPON KNOWLEDGE, SKILLS, AND
JUDGMENTS REFLECTED IN WRITTEN PRACTICE GUIDELINES
The midwife:
1. Describes the parameters of service for independent and collaborative midwifery
management and transfer of care when needed.
2. Establishes practice guidelines for each specialty area which may include, but is
not limited to, primary health care of women, care of the childbearing family, and
newborn care.
3. Includes the following information in each specialty area:
a) Client selection criteria
b) Parameters and methods for assessing health status
c) Parameters for risk assessment
d) Parameters for consultation, collaboration, and referral
e) Appropriate interventions including treatment, medication, and/or devices.
Standard V makes it clear that midwives are part of the health care system, and their
care must facilitate movement for patients to higher levels of care, as needed. If the
CNM’s current practice includes care for pregnant women and attending women during
childbirth, the agreement for collaboration, consultation and referral should be with an
adequate number of physicians (or group of physicians), whose specialty and active
practice includes caring for women during pregnancy and childbirth, to accept
consultations and referrals from the CNM 24 hours / seven days and week. Most CNMs
have agreements with obstetricians or family practice physicians. In addition, CNMs also
need to have agreements with neonatologists or pediatricians for consultation and
referral of the newborn. The agreements should include hospitals, as needed, to
facilitate the timely transfer of a woman’s or infant’s care.
If the CNM is not caring for pregnant women, then the CNM might have a collaborative
agreement with a gynecologist, a family practice physician or internist who also provides
women’s health care, or a pediatrician who specializes in caring for adolescents.
It should be noted that Texas law would not require a CNM to have treatment guidelines
of the nature outlined in ACNM Standard V. However, this is required by the national
organization that the BON recognizes as setting the standards for CNM practice, and
therefore would be a requirement for CNM practice in Texas. These treatment guidelines
217
are addressed in ACNM’s QuickInfo document on Scope of Practice. However, any
treatment guidelines and collaborative agreements required by ACNM standards and
guidelines are not required to be signed. ACNM’s position statement on the subject
makes it clear that while ACNM strongly supports collaboration, it does not support
requirements for signed agreements.116
However, CNMs that have delegated prescriptive authority or call prescriptions to the
pharmacy as the physician’s designated agent must have a signed collaborative
agreement/practice protocol with the physician/s delegating prescriptive authority. That
protocol must meet the requirements specified in Chapter 4.
Expanding Scope to Include New Procedures and Patient Care Activities
This topic was briefly addressed at the end of Chapter 1, but deserves more explanation
since many CNMs will need to incorporate a new procedure into their practice at some
point in their careers. Examples of such procedures for CNMs include colposcopy, use
of a vacuum extractor or circumcision.
In 2005, the BON posted Guidelines for Determining Scope of Practice on its website.
The article includes answers to questions related to scope of practice asked by APRNs.
Every APRN in Texas should be familiar with the contents.
One section of the guidelines discusses adding new procedures or patient care activities
that were not acquired in the basic APRN program. This section is based on Standard
VIII in ACNM’s Standards for the Practice of Midwifery. Consequently, there is no
conflict between the BON and ACNM processes for adding new procedures. If a CNM
follows the ACNM criteria, she will have met the requirements for expanding her scope
in Texas. It is advisable for CNMs to be familiar with both the BON Guidelines and
ACNM’s position statement titled, “Expansion of Midwifery Practice and Skills Beyond
the Basic Core Competencies.”117
The frequently asked questions (FAQs) associated with the BON Scope of Practice
Guidelines are particularly informative. The final portion of the answer to the first
question helps APRNs understand the educational process required and documentation
they need to maintain when they become competent in a new procedure or skill.
Guidelines for Determining Scope of Practice FAQ # 1 (in part)
It is important to remember that there is more to this issue than simply learning
how to perform a particular procedure. Patient selection criteria, underlying
physiology and/or pathophysiology (depending on the nature of the procedure),
as well as indications for and contraindications to the procedure are among the
many concepts that are fundamental to learning a new procedure. The APRN
must also learn to respond to and manage (as appropriate) untoward
events/adverse reactions/complications that may occur as a result of the
procedure. In many cases, on-the-job training will not include this type of content.
If you are ever required to defend your practice for any reason (whether to the
BON or any other entity), the defense will require providing evidence of
education/training and documentation of competence related to the specific
service you provided. As an advanced practice registered nurse you retain
professional accountability for any advanced practice nursing services you
provide [Rule 221.13(e)].118
Each APRN who acquires new procedures and skills, including the knowledge to care
for patients in a subspecialty, should maintain a portfolio that includes their sources of
218
knowledge (e.g. books, articles and continuing education courses), as well as
documentation of the training and ongoing proof of competency. CNMs that follow
ACNM standards and guidelines on expanding midwifery practice will also meet BON
requirements.
However, an informal process to expand competency is not always adequate. In Texas,
there are two functions that legally require specific training courses for APRNs who wish
to provide those services. CNMs who first assist at surgery or those who perform certain
radiologic procedures must be familiar with the requirements in the following section.
7.4 Certain Functions that Require Additional Training
Section 7.3 discussed requirements for expanding an APRN’s competencies to include
new procedures and patients care activitie. However, Texas law requires APRNs to
complete specific training courses to perform certain functions.
Requirements for CNMs to First Assist at Surgery
If any entity plans to bill for first assistant at surgery services performed by an APRN,
that APRN is required to complete a course in nurse first assisting. If there is no plan to
bill for first assistant services, then the CNM who has not completed a first assisting
course, may perform these services under the direct supervision of the surgeon.
First assisting is also addressed in detail in Section 5.3. Because of the confusion that
surrounds this issue, it is recommended that CNMs who are interested in first assisting
at surgery also review that section. Considerations specific to customary CNM practice
are addressed below.
Section §301.354 (a), Occupations Code (the Nursing Practice Act) exempts APRNs
who first assist from being certified in perioperative nursing if the APRN has completed a
first assisting course acceptable to the BON. The BON recognizes continuing education
courses offering ACNM CEUs that allows CNMs to first assist for Cesarean section
births and related surgeries. Such courses are usually offered in conjunction with ACNM
conferences, but also may be offered at other times during the year. ACNM has a
position statement that addresses continuing education for CNMs who wish to first
assistant, and it supports permitting CNMs with appropriate continuing education and
documented expansion of their scope to include first assisting for c-section births and
gynecologic surgeries.
However, if a CNM wishes to first assist for any surgery that involves structures beyond
a woman’s reproductive tract, then the CNM must complete an approved Registered
Nurse First Assistant (RNFA) course. In addition, the CNM should become certified in
perioperative nursing to acquire the RNFA credential. If the CNM is first assisting for
general surgeries, then the CNM should also use the RNFA credential in completing
documentation and billing.
BON Rule §217.18 specifies that an APRN who is not CNOR certified may only first
assist for patients that are in the APRN’s scope of practice. If the APRN wishes to first
assist without any limitations, then the APRN must meet both the RNFA course and
certification requirements. RNFA programs that are acceptable to the BON are listed on
the Competency and Credentialing Institute’s Website. For ACNM accredited courses in
first assisting, check ACNM’s Education Calendar.119 ACNM also publishes a handbook
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titled, The Midwife as Surgical First Assistant..
Performing Ultrasound or Radiologic Procedures
While ultrasound could be included in some nurse-midwives’ educational programs,
limited unltrasound is not a core competency of nurse-midwifery education. Therefore,
CNMs who want to perform limited sonography procedures usually need to follow
ACNM’s recommendations for incorporating new skills and compentencies to expand
midwifery practice.ci
ACNM offers information on its website to guide CNMs who wish to perform limited
ultrasonagraphy. First refer to QuickInfo: Ultrsonography.120 It includes links to articles
and other resources that guide the didactic and clinical training the CNM should
undertake to acquire the necessary knowledge and skills.cii Continuing education
courses in limited ultrasounds may be accessed on ACNM’s CE Calendar. Upon
completion, the CNM reports the new ultrasound procedures the CNM will incorporate
into her practice to ACNM using the Reporting From for the Incorporation of New
Preocedures into Midwifery Practice.
If a CNM needs to perform any radiologic procedures (ones that emit ionizing radiation),
they need to be aware of special state requirements. APRNs are among a large group of
health care providers that are required to take additional courses that total as much as 3
weeks in length. This issue is explained in detail under the subtitle “Education Required
to Perfrom Radiologic Procedures” in Section 5.3. CNMs interested in performing
radiologic procedure should refer to this section.
7.5 Abortion must be Provided by a Physician
ACNM has a QuickInfo document titled, “Midwives and Abortion Services.” The
document affirms that ACNM standards do not preclude a CNM from performing a
medical or surgical abortion if the CNM possesses the advanced education and training
to perform that procedure. However, Texas statute, §171.002 -.171.003, Health & Safety
Code, precludes any person, other than a physician, from performing an abortion by any
means. Therefore, CNMs in Texas may not perform surgical abortion or provide
medications for that purpose.
7.6 APRNs Delegating to Unlicensed Personnel
Unlike a physician, an APRN’s ability to delegate to unlicensed personnel is limited. It is
the same as that of an RN. The BON allows APRNs and other RNs to delegate certain
tasks to assistive personnel. Most frequently, APRNs need to know if they can delegate
administration of drugs to unlicensed personnel.
In general, RNs may not allow an unlicensed person to administer prescription
medications. However, there are a couple of exceptions. An RN may delegate to a
certified medication aid administering medications in a nursing facility. The BON also
permits RNs to delegate administration of vaccines to properly trained persons. The RN
ci
ACNM. QuickInfo: Expanded Practice. Accessed:
http://www.midwife.org/siteFiles/education/Expanded_Practice_3.3.06.pdf.
cii
ACNM. (June, 1996). Limited Obstetrical Ultrasound in the Third Trimester. Accessed:
http://www.midwife.org/display.cfm?id=585.
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must personally ensure that the nursing or medical assistant can safely administer the
vaccine through verifying competency in every step of the procedure.
7.7 RNs and LVNs May Accept Orders from APRNs
BON Position Statement 15.18 permits RNs to take orders from APRNs. It does not
address the issue of LVNs taking orders because, at the time the position statement was
written, the BON only regulated RNs. Now the BON regulates all nurses, and this
position statement applies to both RNs and LVNs.
RNs Carrying Out Orders from Advanced practice nurses
BON Position Statement 15.18 (in part)
…The Board recognizes that in many settings, RNs and advanced practice
nurses work together in a collegial relationship. An RN may carry out an
advanced practice nurse's order in the management of a patient, including, but
not limited to, the administration of treatments, orders for diagnostic testing, or
medication orders. A physician is not required to be physically present at the
location where the advanced practice nurse is providing care. The order is not
required to be countersigned by the physician. The advanced practice nurse
must function within the accepted scope of practice of the role and specialty in
which he/she has been authorized by the board. As with any order, the RN must
seek clarification if he/she believes the order is inappropriate, inaccurate,
nonefficacious or contraindicated by consulting with the advanced practice nurse
or the physician as appropriate. The RN carrying out an order from an advanced
practice nurse is responsible and accountable for his/her actions just as he/she
would be with any physician order. (Board Action, 01/2001).121
7.8 Orders Written by CNMs
Except for Medicaid patients, CNMs may order most health care services in Texas, but
not all. This section informs CNMs about the services that they may order, as well as a
few Texas practice acts that prevent APRNs from ordering particular services for a
patient.
Regardless of whether Texas law allows APRNs to order a service, Medicaid rules have
not kept pace with changes in practice and most rules still require a physician’s order.
CNAP is actively working with Texas Health and Human Services Commission to amend
outdated rules but in the meantime, these frustrating limitations remain when ordering
services for Medicaid clients. Sometimes one is included to become angry with the
Medicaid provider that will not take your order. CNMs must understand that the
Medicaid providers that perform diagnostic tests or provide medical supplies, etc. are
legally required to follow Medicaid rules. If the provider fails to follow the rules then that
provider may not legally obtain compensation for the service.
Diagnostic Tests
APRNs may order diagnostic testing as part of the assessment process. Federal CMS
Rule, 42 CFR 410.32(a)(3), clearly states that non-physician practitioners may order
diagnostic testing. Obviously, the diagnostic test would have to be of a type and ordered
for a person that would be in the CNM’s scope of practice. Federal rules also make it
clear that the CNM ordering the test must be the treating provider.
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42 CFR 410.32. Diagnostic x-ray tests, diagnostic laboratory tests, and other diagnostic
tests: Conditions.
(a) Ordering diagnostic tests. All diagnostic x-ray tests, diagnostic laboratory
tests, and other diagnostic tests must be ordered by the physician who is treating
the beneficiary, that is, the physician who furnishes a consultation or treats a
beneficiary for a specific medical problem and who uses the results in the
management of the beneficiary's specific medical problem. Tests not ordered by
the physician who is treating the beneficiary are not reasonable and necessary
(see Sec. 411.15(k)(1) of this chapter).
(3) Application to nonphysician practitioners. Nonphysician practitioners
(that is, clinical nurse specialists, clinical psychologists, clinical social workers,
nurse-midwives, nurse practitioners, and physician assistants) who furnish
services that would be physician services if furnished by a physician, and who
are operating within the scope of their authority under State law and within the
scope of their Medicare statutory benefit, may be treated the same as physicians
treating beneficiaries for the purpose of this paragraph.122
According to the BON in a letter dated February 25, 2004, ordering laboratory,
radiologic, and other diagnostic tests is permitted as part of “the observation,
assessment, interventions, evaluation…” for patients. See the BON letter at the end of
Chapter 5.
This is a very important issue for laboratories and other departments that perform
diagnostic testing. These departments may be audited and face substantial penalties if
they are billing for tests ordered by unqualified practitioners. Therefore, the letter
provided at the end of Chapter 5 is important verification that the Texas BON considers
ordering diagnostic tests and procedures to be within the APRN’s scope of practice.
If the laboratory or diagnostic test is in a hospital, the APRN will have to be
credentialed and privileged in that facility to order the service. The hospital’s medical
staff bylaws can legally exclude APRNs from having privileges in the hospital. However,
many hospitals in the state are credentialing and privileging APRNs. If your hospital
does not, it is possible to pursue a change. (See information in CNAP’s manual,
Credentialing and Privileging NPs and CNSs in Texas Hospitals.) You can also contact
[email protected] for assistance.
Just as in the case of therapy services, the Health and Human Services Commission
has not updated Medicaid rules. Therefore, laboratory and radiologic facilities still require
a collaborating physician’s name in for Medicaid patients. This should not the case for
Medicare or private insurers.
7.9 Forms and Certifications: What May CNMs Sign?
APRNs may sign most state of Texas forms and certifications that are within the CNM’s
scope of practice. A provision was added to the Nursing Practice Act in 1999 that added
§301.152(d) to the Nursing Practice Act. It states:
(d) The signature of an advanced practice registered nurse attesting to the
provision of a legally authorized service by the advanced practice registered
nurse satisfies any documentation requirement for that service established by a
state agency.
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The provision directs state agencies to accept an APRN’s documentation and signature
as adequate proof that a health care service was delivered. Therefore, most forms from
Texas state agencies will accept a CNM’s signature if the services was in the CNM’s
scope of practice.
However, there are instances in which there is a specific law that requires a physician’s
signature, and the state agency does not have the authority to override that legislative
requirement. Also, if a document will be used in a court of law, it usually requires a
physician’s signature, so the APRN should be particularly cautious if asked to certify a
person’s competency or certify the medical cause of death, for instance, without
reviewing the applicable statutes and rules. One exception for CNMs is described below
in the section on vital statistic filings.
There is a rather lengthy list of specific forms that APRNs may sign in the chapter on NP
and CNS practice issues. Some of those services might be provided within the CNM’s
scope of practice. Therefore, if a CNM has a question about signing a particular form,
refer to Section 5.7. Also refer to the section below, 7.10, on vital statistic filings.
7.10 Vital Statistic Filings Required by Law
The CNM will be the person responsible for filing the birth certificate if the CNM attends
a birth that occurs out of a hospital or birth center. The law requires the CNM or birth
center to file the required information within 5 days, unless there is a delay in naming the
infant for religious reasons. The following is the pertinent statutory provision, §192.003,
Health & Safety Code.
§ 192.003, Health & Safety Code. BIRTH CERTIFICATE FILED OR BIRTH
REPORTED.
(a) The physician, midwife, or person acting as a midwife in attendance at a
birth shall file the birth certificate with the local registrar of the registration district
in which the birth occurs.
(b) If a birth occurs in a hospital or birthing center, the hospital administrator,
the birthing center administrator, or a designee of the appropriate administrator
may file the birth certificate in lieu of a person listed by Subsection (a).
(c) If there is no physician, midwife, or person acting as a midwife in
attendance at a birth and if the birth does not occur in a hospital or birthing
center, the following in the order listed shall report the birth to the local registrar:
(1) the father or mother of the child; or
(2) the owner or householder of the premises where the birth occurs.
(d) Except as provided by Subsection (e), a person required to file a birth
certificate or report a birth shall file the certificate or make the report not later
than the fifth day after the date of the birth.
(e) Based on a parent's religious beliefs, a parent may request that a person
required to file a birth certificate or report a birth delay filing the certificate or
making the report until the parent contacts the person with the child's name. If a
parent does not name the child before the fifth day after the date of the birth due
to the parent's religious beliefs, the parent must contact the person required to
file the birth certificate or report the birth with the name of the child as soon as
the child is named. A person required to file the birth certificate or report the birth
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who delays filing the certificate or making the report in accordance with the
parent's request shall file the certificate or make the report not later than the 15th
day after the date of the child's birth.123
There are two methods by which CNMs may file the required information. The CNM may
use the Texas Electronic Records (TER) system or file a paper version with the
appropriate local registrar. Any CNM attending out of hospital births must refer to The
Handbook on Birth Registration.
Filing though Texas Electronic Registrar (TER)
This system allows online data entry by a CNM or birthing center that is a registered
user. The Department of State Health Services (DSHS) makes the software available to
registered users free of charge and also provides training for using the system.124 When
filing electronically, one should carefully check that the data entered is correct. Once
submitted, it can cost $15.00 to make corrections.
In addition, the required Immunization Tracking (ImmTrac) Registration Form can also
be downloaded through the TER system. Basic information on the requirement to
request consent to enter newborns in the ImmTrac system is contained in a document
titled, “Obtaining Consent During Birth Registration Texas Electronic Registrar.”
Additional information may be accessed through the ImmTrac website.125 The consent
form must be signed by a parent but it is no longer faxed to DSHS. Instead enter the
newborn client information in the Texas Electronic Registrar and affirm that consent has
been granted or denied.
Filing by Paper
Filing birth certificates the old fashioned way is still an option. The CNM or birth center
may order the necessary forms or download them through the DSHS This includes the
mother’s worksheet for the birth certificate in both English and Spanish, as well as other
necessary forms, go to https://www.dshs.state.tx.us/vs/field/vsforms/hospforms.shtm.
The CNM or birth center must file the completed form locally. Usually this involves
sending the completed forms to the local county clerk, but in some localities, there may
be a person within the city that is the local registrar. To find the right location to file birth
certificates, go to https://www.dshs.state.tx.us/vs/field/localremotedistrict.shtm. Then
select the county in which the birth occurred and all registrars in that county are listed.
CNMs May Certify the Death of a Fetus or Stillborn Infant
Chapter 193, Health & Safety Code generally requires physicians to complete the
medical certificate attesting to the cause of death. However, the law allows an exception
in the case of a fetus or stillborn infant that is not attended by a physician. The death of
any fetus that is at least 20 weeks gestation or weighs 350 grams or more must be filed.
This can be done by the CNM or the funeral home that accepts the body. The form is
VS113 and is titled, “Certificate of Fetal Death.” The following is the applicable DSHS
rule.
25 TAC §181.7 (DSHS Rule)
(a) A certificate of fetal death shall be filed for any fetus weighing 350 grams or
more, or if the weight is unknown, a fetus aged 20 weeks or more as calculated
from the start date of the last normal menstrual period to the date of delivery.
(b) A certificate of fetal death shall be considered properly filed:
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(1) when all of the items thereon have been satisfactorily and definitely
answered; and
(2) when the certificate has been presented for filing to the local registrar of the
registration district in which the fetal death (stillbirth) occurred or the fetus was
found. A certificate of fetal death (stillbirth) shall be filed with the local registrar
within five days after the date of fetal death (stillbirth).126
In addition, when parents have a stillborn infant, the CNM is required by law to offer
the parents the opportunity to obtain a birth certificate for that infant. The
application form to request this type of birth certificate application is Form VS301,
“Application for Certificate of Birth Resulting in Stillbirth.”
7.11 Education and Services CNMs Must Provide in Texas
It seems that every legislative session results in new mandates for CNMs and birth
centers to distribute information or complete certain types of screenings. It is all for the
health and welfare of families, so CNMs are usually happy to comply. However,
complying can become a burden if the CNM does not know where to get all the needed
information. This section is designed to lighten that burden by identifying those legal
requirements and resources.
Required Health Education
Currently there is a rather lengthy list of health information that must be supplied to new
parents. The list includes information on newborn screening (both hearing and blood),
immunizations and ImmTrac (discussed in section 7.9), postpartum depression, and
shaken baby syndrome. Fortunately, the Department of State Health Services includes
all the information in one booklet. The booklet titled, “Information for Parents of
Newborns,” can be downloaded from the DSHS website at. This booklet is also available
in Spanish. These booklets and any other literature produced for the public or health
care providers may be ordered through the DSHS Forms & Literature Order Entry
System.127
Newborn Blood Screening
For decades birth providers and facilities have been required to screen infants for certain
inherited conditions. Early recognition and treatment for these conditions makes a
drastic difference in the outcomes for children. In 2008, DSHS implemented an
expanded program that now screens for 27 disorders.ciii
Two separate tests are required. The first is required to be performed before discharge
from the hospital or birth center. The second must be completed at 1 to 2 weeks of life.
As indicated above, CNMs are required to educate their patients about the test so they
will understand the importance of returning for the second test and follow-up, should
there be a positive result. The test kits are obtained from the DSHS Laboratory. For all
the information you need on this newborn screening program go to the DSHS Laboratory
Website, http://www.dshs.state.tx.us/lab/newbornscreening.shtm. To view or order
information for parents, go to https://www.dshs.state.tx.us/newborn/pubs.shtm.128
ciii
DSHS. (September 4, 2008). Disorders Included in the DSHS Newborn Screening Panel. Last accessed
at https://www.dshs.state.tx.us/lab/NBSdisorderList.pdf.
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Newborn Hearing Screening
The Texas Early Hearing Detection and Intervention (TEHDI) Program is the State’s
newborn hearing screening, tracking and intervention program. The Texas Department
of State Health Services is the oversight agency for this program, established in 1999
under §47.001 - 47.009, Health & Safety Code.
The statute requires that certain birth facilities offer newborn hearing screening (NBHS)
to all families of newborns during the birth admission. Facilities that must offer the
screening are:
a) Hospitals licensed under Chapter 241 that offer obstetrical services and are
located in counties with populations greater than 50,000, and
b) Birth Centers licensed under Chapter 244 that are located in counties with
populations greater than 50,000 and that have 100 or more births per year.
Very few birth centers in Texas meet this threshold and are required to comply, but for
those that are, they must purchase certain equipment and have a computer system that
will run specific software that interfaces with DSHS. Other birth centers may voluntarily
participate in the program. Health insurers are required to cover NBHS and it is a
covered service under Medicaid.
Facilities that are legislatively mandated to offer newborn hearing screening are certified
by DSHS. To maintain certification, the facilities are subject to specific performance
standards outlined in 25 TAC §§ 37.501 - 37.512. For details on the program, refer to
DSHS Audiology Services webpage. The site also has links to literature on the program
for parents. As stated above, it is required that all parents receive information on the
program. Those CNMs attending out-of-hospital births and are not required to offer
NBHS are encourage to identify facilities in their area that offer the service and refer
clients to those facilities. Two children are born in Texas everyday with significant
hearing loss that will benefit dramatically by early intervention.129
7.12 Public Health Surveillance and Reporting Requirements
The State of Texas has a number of surveillance programs. These programs are
important for detecting outbreaks of communicable disease and other trends that can
indicate threats to public health. However, surveillance programs are only effective if
health care providers report as required by law.
Birth Defects Surveillance Program
Texas has a birth defects surveillance program and maintains the Texas Birth Defects
Registry. This program does not require reporting by health professionals or facilities.
This is an active surveillance program in which program personnel may review the
records of any hospital, birth center, midwife or clinic to gather data. CNMs should be
aware that this program exists in case a DSHS staff member asks to review their
records. The program also provides a source of data for research that may be of interest
to a few CNMs. For more information go to the Texas Birth Defects Epidemiology &
Surveillance webpage.130
Communicable Diseases & Other Notifiable Conditions
Every health care provider should be familiar with the list of Notifiable Conditions. This is
particularly true for CNMs who will encounter cases of sexually transmitted diseases
more often than most. Most diseases and conditions must be reported within one week,
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but a few, such as an elevated blood lead level in an adult or child, require immediate
reporting on a 24 hour/7day a week basis. The DSHS Infectious Disease Control Unit
website offers a vast amount of information on reporting requirements. It is also an
excellent source of information about recent outbreaks and how to identify all types of
infectious disease.131
DSHS proposed amendments to §§97.131 – 97.134, concerning reporting sexually
transmitted diseases in the July 31, 2009 issue of the Texas Register. When adopted,
the new rules would include the following changes.
 "HIV-exposed infants" must be reported because infants born to HIV-infected
mothers are suspected to have HIV infection.
 §97.132(5) would include language requiring local school authorities to report a child
attending school who is suspected of having an STD, based on medical evidence
 The reporting forms for adult and adolescent HIV/AIDS and pediatric HIV/AIDS from
CDC forms to department-specific forms (the department's Texas HIV/AIDS
Adult/Adolescent case report form and the department's Texas HIV/AIDS pediatric
case report form)
 HIV reporting requirements for laboratories increases
 Proposed amendments to §97.134(e) would require a shorter reporting period for
physicians and APRNs, if not reported by a physician, to submit reports of primary or
secondary syphilis by telephone (i.e., within one working day of determining the
diagnosis). Other STD retain the existing requirement that reporting be made within
seven calendar days.
HIV Testing and Results: Legal Information APRNs Need to Know
With two exceptions, consent is required to perform HIV testing. Consent does not have
to be written but should be documented stating that the HIV test has been expalained
and consent obtained in the patient’s chart. Circumstances in which HIV testing may be
done without consent include the following:
1. Accidental exposure of a health care worker to blood or other body fluids
2. HIV (as well as Hepatitis B and syphilis) testing is required at the first prenatal
visit and at birth.
7.13 Providing Care for Adolescents
It is not uncommon for CNMs to treat adolescents who are not 18 years of age or
emancipated. If the adolescent wishes to be treated confidentially, it often leads to
questions about the legality of treating the minor without parental consent. It is legal to
treat adolescents for a communicable disease, including sexually transmitted diseases,
without parental consent. In some federal programs it is also mandatory to provide family
planning services on a confidential basis. DSHS maintains a list of public funding
sources that do and do not require consent for family planning services. 132
For an excellent reference that explains the legal options for treating minors, read the
article on the DSHS Website titled, “Medical Check-ups for Adolescents: Consent for
Medical and Mental Health Care of a Minor.” This article also links to all the relevant
Texas Statutes.133
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7.14 Out-of-Hospital Births
Like many other aspects of midwifery, many health care providers in the United States
harbor serious misconceptions about out-of-hospital births, and believe it is inherently
safer for all women to deliver in a hospital. Indeed the American College of Obstetrics
and Gynecology (ACOG) issued a position statement in October 2006 to that effect. The
ACNM response is very informative. ACNM also has a position statement on home and
out-of-hospital birth. Both documents should be reviewed by anyone interested in
improving birth outcomes in the U.S.134
Home Births
One of the most misunderstood aspects of midwifery care is the home birth. Planned
home birth with a CNM or Certified Midwife in attendance has an outstanding record of
safety. In fact, the World Health Organization, in a 1996 paper titled, “Care in Normal
Birth: A Practical Guide,” states that the safest place for a low risk woman to deliver is in
the home. Surprisingly the technical working group that wrote the report concluded the
least safe place for a low risk woman to deliver is in a hospital.135
Planned out-of-hospital birth, using appropriate selection criteria with educated birth
attendants, is a safe alternative, and an alternative that midwives firmly believe should
be preserved for women and families. ACNM has a very well documented position
statement supporting planned home birth. There are a couple of good studies to support
that position, and birth statistics are continually reported and show good outcomes of
home birth.136
Most studies that show home birth results in poorer outcomes mix data that includes
unplanned home birth with no qualified birth attendant. Often health care providers are
biased by the antic dote about a poor home birth outcome. However, they fail to consider
that poor outcomes occur in hospital settings and no one blames the fact that the baby
was born in the hospital for that outcome.
Attending a birth in a low resource setting, such as a home, is very different than
attending a birth in a hospital. If not for midwifery, that knowledge would be totally lost in
the U.S. Until the medical community in the U.S. bases interventions on evidence,
versus bias, physicians will continue to initiate interventions that can create poor
outcomes, and the health care system will continue to be baffled about why the U.S.
scores so badly when compared to other developed countries on maternal and neonatal
outcomes. Certified Nurse-Midwives also are taking the lead to develop standards for
out of hospital births should bioterrorism or pandemics occur that may cause hospitals to
close and divert normal birth to homes and birthing centers.
Birthing Centers
Birthing Centers must be licensed by DSHS Health Facility Licensing Division. The
process costs $2,000 but is relatively simple. After receipt of a completed application,
facility licensing personnel schedule a pre-survey conference. After initial licensing is
granted, facility licensing personnel conduct an on-site facility survey within 90 days. For
an application and more information, go to http://www.dshs.state.tx.us/HFP/birth.shtm.
The first step for any CNM that contemplates opening a birthing center is to review and
understand the DSHS Rules on Birthing Centers.137 For information on Medicaid
reimbursement, see “Birthing Centers” in Section 7.16.
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7.15 Credentialing & Privileging
Credentialing is the process by which a health care facility or organization confirms that
health care providers are the persons they represent themselves to be and are likely to
provide safe health care services. The credentialing process involves completing an
application. Then the facility or organization verifies references, the provider’s licensure,
certification, education, and researches the past professional history and criminal
history.
In Texas, both hospitals and managed care organizations are required to use the
standardized credentialing application. The form and the instructions for completing the
application are available on the Texas Department of Insurance website.138
Privileging is the process through which the health care practitioner is granted authority
to provide certain care and services to patients within a health care facility. The
application for privileges is separate from the credentialing application and is unique to
each facility. For more information on credentialing & privileging, see section 5.12 titled
“Credentialing & Privileging Basics.”
Hospital
Because most CNMs attend deliveries in hospitals, they need hospital privileges.
Whether CNMs are permitted to have privileges in a particular facility depends upon that
facility’s medical staff bylaws. No hospital in Texas is required to grant privileges to any
type of APRN. However, if the hospital does grant privileges to CNMs, the hospital
licensing statute requires the hospital to afford each CNM who applies certain due
process rights.
§ 241.105, Health & Safety Code. HOSPITAL PRIVILEGES FOR ADVANCED
PRACTICE REGISTERED NURSES AND PHYSICIAN ASSISTANTS.
(a) The governing body of a hospital is authorized to establish policies
concerning the granting of clinical privileges to advanced practice registered
nurses and physician assistants, including policies relating to the application
process, reasonable qualifications for privileges, and the process for renewal,
modification, or revocation of privileges.
(b) If the governing body of a hospital has adopted a policy of granting clinical
privileges to advanced practice registered nurses or physician assistants, an
individual advanced practice registered nurse or physician assistant who qualifies
for privileges under that policy shall be entitled to certain procedural rights to
provide fairness of process, as determined by the governing body of the hospital,
when an application for privileges is submitted to the hospital. At a minimum,
any policy adopted shall specify a reasonable period for the processing and
consideration of the application and shall provide for written notification to the
applicant of any final action on the application by the hospital, including any
reason for denial or restriction of the privileges requested.
(c) If an advanced practice registered nurse or physician assistant has been
granted clinical privileges by a hospital, the hospital may not modify or revoke
those privileges without providing certain procedural rights to provide fairness of
process, as determined by the governing body of the hospital, to the advanced
practice registered nurse or physician assistant. At a minimum, the hospital shall
provide the advanced practice registered nurse or physician assistant written
reasons for the modification or revocation of privileges and a mechanism for
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appeal to the appropriate committee or body within the hospital, as determined
by the governing body of the hospital.
(d) If a hospital extends clinical privileges to an advanced practice registered
nurse or physician assistant conditioned on the advanced practice registered
nurse or physician assistant having a sponsoring or collaborating relationship
with a physician and that relationship ceases to exist, the advanced practice
registered nurse or physician assistant and the physician shall provide written
notification to the hospital that the relationship no longer exists. Once the
hospital receives such notice from an advanced practice registered nurse or
physician assistant and the physician, the hospital shall be deemed to have met
its obligations under this section by notifying the advanced practice registered
nurse or physician assistant in writing that the advanced practice registered
nurse's or physician assistant's clinical privileges no longer exist at that hospital.
(e) Nothing in this section shall be construed as modifying Subtitle B, Title 3,
Occupations Code, Chapter 204 or 301, Occupations Code, or any other law
relating to the scope of practice of physicians, advanced practice registered
nurses, or physician assistants.
(f) This section does not apply to an employer-employee relationship between
an advanced practice registered nurse or physician assistant and a hospital.
The medical staff bylaws in many hospitals in Texas require a sponsoring physician in
order for a CNM to be privileged in the facility. However, CNMs should know that there is
no state, federal or accreditation requirement that necessitates a sponsoring physician.
For details on credentialing and sample documents specific to CNMs, see ACNM’s
publication, Clinical Privileges and Credentialing Handbook. It is available for purchase
on the ACNM Website. For members, ACNM also offers the “Credentialing and Medical
Staff Privileging Resource”. 139
CNAP also has a manual on Credentialing and Privileging NPs and CNSs in Texas
Hospitals that encompasses Texas laws and rules. In 2009, CNAP will publish an
expanded version titled, Credentialing and Privileging APRNs in Texas Hospitals. This
version will include a chapter devoted to CNMs. All CNAP publications are available for
purchase and download from CNAP’s website.
Managed Care
Certain types of health insurance plans contract with providers to form networks through
which those insured by the health plan receive the majority of their health care services.
In general, those health plans are preferred provider organizations (PPOs) and health
maintenance organizations (HMOs).
All HMOs (§843.312, Insurance Code) and PPOs (§1301.052, Insurance Code) in Texas
should contract with APRNs because there are provisions in the HMO and PPO statutes
that require these managed care plans to include APRNs on their provider panels under
certain circumstances. The two provisions are worded differently, but the language in
both is similar to the following.
An insurer offering a health benefit plan may not refuse a request made by a
physician participating as a provider under the plan and an advanced practice
registered nurse or physician assistant to have the advanced practice registered
nurse or physician assistant included as a provider under the plan if:
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(1) the advanced practice registered nurse or physician assistant is
authorized by the physician to provide care under Subchapter B, Chapter 157,
Occupations Code; and
(2) the advanced practice registered nurse or physician assistant
meets the quality of care standards previously established by the insurer for
participation in the plan by advanced practice registered nurses and physician
assistants.140
Subchapter B, Chapter 157, Occupations Code, is the section of the Medical Practice
Act on physician delegation of prescriptive authority to an APRN or PA. Therefore, the
physician making the request must already be in the HMO’s or PPO’s provider network
and have a relationship with the APRN that would qualify for delegation of prescriptive
authority. The reference to pre-established quality of care standards does not allow a
PPO or HMO to refuse admission to the APRN because the company does not have
standards established for APRNs. It also prevents the company establishing
unreasonable standards. However, despite this provision, it still may be possible for
manage care plans to exclude APRNs if the plan already had an adequate provider
network.
There are articles and model letters on CNAP’s Website that may help APRNs take
steps to be credentialed by health plans and added to their provider networks. Please
contact [email protected] if a PPO or HMO refuses a delegating physician’s request
to add the CNM to their provider network after you have taken reasonable steps to be
admitted to the provider network. In some situations, Lynda may be able to help, and
CNAP tries to track companies that are not complying with the law. In certain situations,
it also may be appropriate to file a complaint with TDI.
There is no central databank to find information on how certain health insurance plans
reimburse APRNs. However, TDI has a searchable databank of HMOs that provides the
ability for APRNs to find all the HMOs by county. Information on all PPO and HMO plans
is available at http://www.tdi.state.tx.us/consumer/colists.html .
7.16 Reimbursement by Certain Public Programs
Reimbursement is a broad topic that could easily encompass an entire manual. The only
information included here is basic information on rates, rules and provider enrollment for
the major public programs, with particular emphasis on Medicaid (since over half of all
births in Texas are paid for by Medicaid). Additional information on reimbursement is
available on the CNAP website. ACNM also publishes Getting Paid: Billing, Coding &
Payment for Nurse-Midwifery Services. The handbook is available for purchase on
ACNM’s website.
Medicare and the NPI
Medicare covers births for disabled women and primary care that is within the CNM’s
scope of practice. CNMs bill Medicare relatively infrequently since Medicare recipients
comprise a very low percentage of the average CNM’s clientele. To bill Medicare, the
CNM must be a Medicare provider and is only paid at 65% of the physician’s fee. ACNM
is working to improve Medicare reimbursement for CNMs. civ
civ
ACNM. Issues Action Center. Accessed: http://capwiz.com/acnm/home/. ACNM (2008) The Medicare
Improvements for Patients and Providers Act. Includes a summary of progress toward obtaining Mediare
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To apply for a Medicare number, go to the TrailBlazer website. TrailBlazer is the
Medicare carrier for the state of Texas and responsible for provider enrollment and
payment.
CNMs in Texas are not required to be a Medicare provider in order to be a Texas
Medicaid provider. However, all providers are required to have a National Provider
Identifier (NPI) that is used as the identifying number for all health plans, including
Medicare and Medicaid as of May 23, 2008. This is also the identifier used for ordering
practitioners, so the NPI is essential.
Medicaid
Federal rule, 42 CFR 440.165, requires that state Medicaid programs cover nursemidwifery services.141 The Texas Medicaid Program reimburses CNMs (and all APRNs)
at 92% of the physician’s fee. CNMs should also be aware that Texas Medicaid is very
liberal in permitting physicians to be reimbursed for APRN services. The physician must
have a relationship with the APRN that meets the requirements for delegation of
prescriptive authority. Also, the physician must use the APRN modifier, “SA” when billing
for a service provided by a CNM or any other type of APRN. When services are billed
under the physician’s name with the SA modifier, the physician is reimbursed 100%.
The Health & Human Services Commission publishes rules on reimbursement for CNMs
that participate in the Texas Medicaid Program. All CNMs that participate in Medicaid
should read those rules. Rules for CNM participation in the program are 1 TAC
§354.1251 - §354.1252. The rules require that the CNM identify the physician or
physician group to whom the CNM will refer patients if medical complications arise. Rule
354.1252 also requires CNMs to notify their Medicaid clients if the physician/s to whom
the CNM refers does not accept Medicaid as this will be a potential financial liability for
the family if referral to the physician becomes necessary. The rule that permits a
physician to bill for services provided by APRNs is a rule of physician services, 1 TAC
§354.1062. The Medicaid rule on the reimbursement rate for a CNM is 1 TAC
§355.8161.142
Birthing Centers
Rules for the participation of birthing centers in the Medicaid Program were 1 TAC
§354.1261 - §354.1262.50. The reimbursement rule on birth centers was 1 TAC §355.
8181. However, these rules were repealed, effective September 1, 2009. CMS ruled that
federal law does not include birthing centers as a facility that may be reimbursed by
Medicare or Medicaid. The Health & Human Services Commission appealed CMS’s
ruling for two years, but was forced to change its rule.
The Texas Medicaid Program will still pay birthing center facility fees but not directly to
the birthing center. The charges must be billed by the CNM. If the CNM does not own
the birthing center, then the birthing center will need to establish a contract with the CNM
to reimburse the birthing center fees paid by Medicaid to the birthing center. If the CNM
is employed by the birthing center, then this could be done through an employment
contract or an employment policy. CNMs must be aware that they will need to complete
parity for CNMs. Accessed:
http://www.midwife.org/siteFiles/legislative/Medicare_Bill_Final_Summary_7_08.pdf.
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an IRS Form 1099 to indicate that the Medicaid dollars for birthing center fees was paid
to the birthing center and is not income to the CNM.
Efforts are being made to pass federal legislation that will add birth centers as facilities
that may be reimbursed.cv When that bill is passed and CMS permits states to reimburse
bith centers, HHSC staff has indicated a willingness to re-adopt the birthing center rules
as quickly as possible.
Medicaid Home Birth
Medicaid rules currently require that a woman be examined and cleared for home birth
by a physician during the last trimester of pregnancy. This requirement effectively denies
women on Medicaid the right to deliver at home because of malpractice considerations.
Very few physicians will provide such clearance because it could draw them into a law
suit. It is very likely that this requirement violates federal law and we expect this barrier
to home birth for Medicaid women will be removed. However, for now, every CNM who
attends women for home birth must be familiar with the HHSC rule that states the
following.
1 TAC §354.1251(3) [In part]
(3) …Home deliveries performed by a CNM are reimbursable when HHSC or its
designee has prior authorized the home delivery. The CNM must submit a written
request for prior authorization during the recipient's third trimester of pregnancy.
The CNM must include a statement signed by a licensed physician who has
examined the recipient during the third trimester and determined that at that time
she is not at high risk and is suitable for a home delivery.
Indigent Care
Texas counties are required to provide some health care for indigent residents that do
not reside in a hospital district. However, before a CNM cares for any residents eligible
for health services under the county’s indigent program, the CNM should ensure that the
county in which the patient resides covers services provided by CNMs. Unfortunately,
APRN services are on the list of optional services, §61.0285, Health & Safety Code.
Therefore, counties are only required to cover services provided by a physician. Some
counties will use this as a reason to deny reimbursement to APRNs, even if the services
were provided in an emergency. For more information on the County Indigent Health
Program, go to the County Indigent Health Care Program webpage.143
7.17 Community Health Programs
There are a number of community health programs that may be of interest to CNMs and
their low income clients. CNMs may want to become a provider in some of these
programs. In other cases, such as the family planning program, the CNM may need to
know where to refer persons for services in their area.
Family Planning Program
The state of Department of State Health Services contracts with a number of clinics
throughout the state to provide family planning services to Medicaid recipients or
persons with a self-declared income of 150% of the federal poverty level or less. For
cv
AABC. Medicaid Birth Center Reimbursement Act Introduced. Accessed:
http://www.birthcenters.org/news/breaking-news/?id=84.
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information on this program and clinic locations where persons can be referred for family
planning services, go to http://www.dshs.state.tx.us/famplan/default.shtm.
CHIP Perinatal Program
All pregnant women in families with an annual income up to 185% of poverty qualify for
the Texas Medicaid Program. Since January 1, 2007, prenatal care and delivery for
women in families with annual incomes above 185% to 200% of poverty can be covered
under the state’s Children’s Health Insurance Program (CHIP). The CHIP Perinatal
Program covers the unborn child, not the woman, for a continuous period of 12 months.
This allows ample time for the infant to be enrolled in CHIP after birth so the child can
have uninterrupted health insurance until at least 9 months of life. For more details, refer
to HHSC Rule, 1 TAC §370.401, and the HHSC CHIP Perinatal webpage.144
Women’s Health Program
All women of childbearing age (18 -44 years) with family incomes at or below 185% of
poverty qualify for the Women’s Health Program. Eligible women may receive women’s
health and certain primary care screening and education services. Any CNM or clinic
that participates in the Medicaid Program may also participate in this program. For more
information, go to http://www.hhsc.state.tx.us/womenshealth.htm.
7.18 Employment Issues and Contracts
Getting that first job as a CNM is exciting and creates some anxiety for most new
graduates. Even APRNs with lots of experience can make some poor job choices.
However, knowing the questions to ask a prospective employer and knowing what to
look for can make work transitions much easier.
As a first step, CNMs should refer to Business Concepts for Healthcare Providers: A
Quick Reference for Midwives, PAs, NPs, CNSs, and Other Disruptive Innovators by
Joan Slager, CNM, MSN.145 While this reference does not offer information that is
specific to Texas, many employment issues are not dependent on the state in which the
APRN practices.
Many physicians have not worked with APRNs in the past. This should not deter the
APRN from working with the physician, but the APRN should carefully evaluate the
physician’s willingness to learn and conform to the rules established by the Texas
Medical Board in delegating prescriptive authority and other medical acts.
It is also wise to understand the physician’s philosophy on supervision and whether the
physician intends to supervise all of your practice versus only those aspects of the
practice that are required by law. The physician is responsible for the total care that their
patients receive so it is certainly within the physician’s prerogative to supervise more of
your practice than the law requires, but the physician should be aware that they are
accepting more liability if they choose to do so.
Some CNMs feel very comfortable being highly supervised, and it may be just what a
new CNM graduate wants. There is no right or wrong in the degree to which a physician
chooses to supervise an APRN. However, unnecessary supervision reduces efficiency
for both providers. It is very important that the APRN is comfortable with the physician’s
level and style of supervision. While close supervision may be reassuring to some
APRNs, it may be frustrating to a CNM who has been educated in a very well
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established professional practice that includes techniques and care that are not always
well understood by their physician colleagues.
New graduate CNMs should also be cautious of practicing with physicians who do not
appreciate the special value that midwifery brings to women’s health. The midwifery
model is a big part of the reason that CNMs have better outcomes than physicians in
managing low risk pregnant women’s health care. CNMs who begin practicing just like
their physician collegues lose that advantage.
It also may be to the CNM’s advantage to work with the physician for a day or two before
accepting a position. As an alternative, the CNM should consider including a trial period
of one month to 3 months in which both parties may terminate the contract. The
employment contract should stipulate that the CNM should be paid for the time and there
would be no enforcement of restrictive clauses in the contract if the CNM terminates
during this period of time.
In addition, the CNM should consider including a provision in the contract that the
physician agrees the practice currently conforms to all HIPAA, OSHA, CLIA
requirements, and that billing practices conform to CMS, Texas Medicaid, or private
insurer requirements, as appropriate to the insurance plan being billed. The contract
should include language that failure to meet the requirement ends the contract and
renders all restrictive clauses null and void. The language should also include a
provision for the CNM’s payment up to the date of termination.
A nurse practitioner recently had a very bad experience when she signed an
employment contract that contained a restrictive non competition clause that would not
permit her to take another NP job or start a practice in the area for two years after
leaving the practice. Unfortunately after working 2 weeks, the NP found the physician’s
practice was not conforming to HIPAA, OSHA and CLIA standards. Since APRNs are
required to conform to all other state and federal requirements in their practices, an
APRN working within such a practice must leave or help bring the practice into
conformance. In this case, bringing the practice into compliance was more work than this
APRN expected when she negotiated her salary. In addition, the physician delayed
signing the practice protocols. This left the APRN unable to prescribe medications in an
alternate site.
While this bad situation is not common, it informs other APRNs about provisions they
might want to include in an employment contract and potential pitfalls they need to
consider. It is never wise to sign an employment contract developed by the physician’s
attorney without having the contract reviewed by your own attorney and questionable
provisions negotiated and re-written to meet the APRN’s needs. Also be aware that most
attorneys are not familiar with advanced practice registered nurses, so you should select
one that has experience with structuring such contracts for APRNs. While it is certainly
appropriate for the APRN to be fair and reasonable in negotiating the contract, this is
business and it is not your job to take care of the physicians. The APRN should always
think in terms of the provisions that should be included in the contract to protect the
APRN.
Resources
ACNM offers information about employment contracts on their website. Refer to
QuickInfo: Contracts. This document also contains links to other references. The
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Employment Contract Checklist is also helpful to ensure the contract includes all the
elements that should be addressed.
ACNM provides information on CNM salaries in Quickinfo: Productivity and
Compensation. This document contains a link to the most recent CNM salary survey. If
CNMs want to know what NP colleagues might be earning, two sources offer NP salary
data. Refer to NP Central and Advance for Nurse Practitioners. Advance conducts a new
surey every two years. The 2009 Salary Survey data should be published in February
2010.146
7.19 Responding to Concerns about Vicarious Liability
Concerns about vicarious liability can take different forms. Sometimes, physicians who
want to work with CNMs, are hesitant to do so because their attorneys incorrectly tell the
physician that the physician will be held liable for the acts of the CNM. This is not true
unless the physician had an active role in the patient’s care. Physicians are not liable for
the care a CNM renders simply because the physician delegates prescriptive authority.
As a matter of fact, Texas law specifically states that a physician is not liable simply
because he or she delegated prescriptive authority unless the physician knows that the
CNM is not qualified. Section 157.060, Texas Occupations Code, states:
§ 157.060, Occupations Code. (Medical Practice Act) PHYSICIAN LIABILITY FOR
DELEGATED ACT
Unless the physician has reason to believe the physician assistant or advanced
practice registered nurse lacked the competency to perform the act, a physician
is not liable for an act of a physician assistant or advanced practice registered
nurse solely because the physician signed a standing medical order, a standing
delegation order, or another order or protocol authorizing the physician assistant
or advanced practice registered nurse to administer, provide, carry out, or sign a
prescription drug order.147
In other cases, vicarious liability becomes an issue in malpractice insurance.
Periodically, medical malpractice insurance companies try to impose a surcharge on
physicians who work with CNMs. ACNM has done an excellent job of successfully
fighting such attempts in the past. The fear that predicates such surcharges has never
been based on actual increased costs incurred by the malpractice carrier due to
physicians working with CNMs. In fact, the opposite has always proved to be the case.
Physicians working with CNMs are less likely to have a malpractice suit filed against
them. Therefore, it is very important to copy and save any letter received from a
malpractice carrier threatening to impose a surcharge or drop malpractice insurance for
a physician working with a CNM. Please notify Lynda Woolbert immediately if this occurs
to any physician working with an APRN. For additional information on this topic, refer to
the article, “An Update on Vicarious Liability for Certified Nurse-Midwives/Certified
Midwives.” 148 ACNM’s Professional Liability Information webpage also contains other
excellent information on liability and liability insurance.
7.20 CNM-Owned Practices
All APRNs may own their own practices in Texas. This is particularly common for CNMs
who also may own birth centers. CNMs who want to own a birth center should refer to
the resources available on the American Association of Birth Center (AABC) website.
AABC offers several essential documents to guide the process.
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The fact that a CNM may own a practice and/or birth center does not change the fact
that certain aspects of the practice must be delegated and supervised by a physician.
Therefore, it is important that CNMs not confuse the business aspects of their practice
with the legal requirements for providing medical aspects of care (i.e. medical diagnosis
and prescriptive authority). Owning a practice does not alter the limitations on an
APRN’s scope of practice.
Contracting with a Physician to Provide Supervisory and Consultation
Services
If an APRN is going to prescribe medication, the APRN’s practice must be in a site that
qualifies for prescriptive authority, the APRN must have a delegating physician, and that
delegating physician must meet the same supervisory requirements as in a practice
owned by the physician or any entity. The APRN contracts with the physician to provide
supervisory and consultation services, and the APRN pays a fee to the physician based
on the terms of the contract.
APRNs have been very innovative through the years in negotiating with physicians for
these services. In lieu of direct payment, some APRNs see patients in the delegating
physician’s practice. This may be a good way for a new APRN to get established.
However, as soon as the APRN has a full patient practice it is not cost effective for the
APRN to close his/her own practice in order to provide services for the delegating
physician. Therefore, an APRN should carefully consider signing any long-term contract
that would not allow the APRN the flexibility to re-structure the terms of the contract with
the physician.
Texas law does not allow reimbursing the physician for his/her time by splitting fees or
paying a certain percentage of your profits to a delegating physician. It is also illegal for
an APRN to employ a physician. (See section below for additional information.) It is
possible for the APRN and physician to each own their own businesses and share office
space, as long as the contract is clearly structured so it does not violate provisions in
Texas law that prevent different types of professionals from jointly owning businesses.
These contractual issues are complicated and the attorneys that develop contracts for
an APRN-owned business must be knowledgeable about health law and structuring
businesses in Texas. The APRN should be represented by an attorney who is familiar
with helping APRNs structure their businesses. If an attorney is not familiar with the
doctrine of “the prohibition against the corporate practice of medicine’ without doing
research, then that is probably not the right attorney to write the contract and represent
your interests.
Finding a physician who reliably meets all supervisory requirements for the type of
practice site is often the major challenge that the APRN faces in starting his/her own
practice. Some physicians may enter the contract with every intention of fulfilling the
supervisory requirements, but finds this more time consuming than anticipated.
Therefore, it is wise to structure a contract so the APRN will not have to buy out the
physician’s contract and allows the APRN to find a different delegating physician as
soon as possible if the current physician is unable or unwilling to fulfill all requirements.
APRNs May NOT Employ a Physician
Chapter 162 of the Medical Practice Act (§§162.001 -162.051 and §§162.201 – 162.206)
limits the employment options for physicians to entities owned or operated by other
237
physicians or certain health care organizations certified by the Texas Medical Board.
Therefore, a non-physician, including APRNs, may not employ a physician.
Physicians and APRNs May NOT Jointly Own a Practice or Split Fees
Physicians are not only limited in the type of employment they may accept, but also in
the type of business relationships they can form. Some of these prohibitions also affect
an APRN’s ability to form a business relationship with another type of licensed health
care provider.
Sections 2.003 - .004, Business Organizations Code, prevents formation of businesses if
any one or more of its purposes is to engage in a profession that cannot be lawfully
performed without first obtaining a license and the license cannot lawfully be granted to
a corporation or business. It also prohibits forming the partnerships or other domestic
entities if it would violate any other state law (e.g. Medical Practice Act) or a professional
partnership would engage in providing more than one type of professional service.149
The Corporate Practice of Medicine
Texas prohibits the "corporate practice of medicine.” The Texas Medical Board (TMB)
explains this legal doctrine on its website and offers legal citations that support the
doctrine. In part, the TMB explains the prohibition as follows.
A general summary of the corporate practice of medicine doctrine is that it
prohibits physicians from entering into partnerships, employee relationships, fee
splitting, or other situations with non-physicians where the physician's practice of
medicine is in any way controlled or directed by, or fees shared with a nonphysician. Generally, physicians may enter into independent contractor
arrangements with non-physicians. However, whether an independent contractor
situation exists is a question of law and attendant facts.150
Physicians and APRNs can form partnerships to own the building and equipment, but
not to co-own the practice. An APRN or physician may own the building individually and
rent office space to the other person. As discussed previously, physicians may
consultant with an APRN under a contract for professional services. However, any
sharing of professional fees or profits of a practice, even on a percentage basis, is not
permitted. This is a very specialized area of law and anyone contemplating any type of
business relationship with a physician should discuss this with an attorney who is well
versed in forming health care businesses in Texas.
Advertising
APRNs may advertise their practices, but there are legal restrictions on the way in which
one may represent oneself or the practice. Not only is it unprofessional conduct to make
false statements, it is also illegal to mislead the public. The APRN should avoid any
reference to offering “medical” services or having a “medical” practice. Those are terms
that denote a physician is providing the services. The APRN should not only include the
APRN’s appropriate initials after his/her name, but spell out what those initials mean.
While this is not technically required by any law or rule, APRN advertising is under
scrutiny and most members of the public do not know what CNM means unless those
initials are explained in words.
A CNM who owns a practice that also employs or partners with a Family Nurse
Practitioner could say that they are working in a “family practice” and providing “family
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health care and birth services.” A CNM could say she provides women’s health care
including prenatal, delivery and postnatal health care services.
If one also has an academic (e.g. Ph.D, DSN, or DrPH) or professional doctoral degree
(DNP) then the APRN may also use “Dr.” before his or her name. However, if one
chooses to use the title, “doctor,” one must clearly indicate the source from which that
title is being used. It is illegal to infer that one might be a MD or DO in any use of titles in
advertising or other professional capacity.
As indicated in section 2.9, there are rules that apply to all health professionals on
advertising, and using the title, “Doctor.” These rules are in §102.004 and §§104.003 –
104.004, Texas Occupations Code. In addition, APRNs must understand the difference
between advertising and soliciting patients. Soliciting patients for your practice, or for
another practitioner’s practice, constitutes unprofessional conduct. For more information,
read all of Chapters 102 and 104, Texas Occupations Code.
It is also important for APRNs to know the forms of communication that might constitute
advertising. The definition of “advertising” in the Texas Medical Board rules clearly
explains that business cards and nameplates are considered to be forms of advertising.
To read this definition in 22 TAC §164.2 and to find other rules on advertising for
physicians, go to 22 TAC §164. While these rules do not pertain to APRNs, they can
offer further guidance on appropriate guidelines for advertising your practice.151
7.21 Additional Resources for CNMs
While this chapter addressed a few issues that impact credentialing, privileging,
reimbursement and other business aspects of practice, the APRN Guide does not
discuss these issues in the detail that most CNMs require. Therefore most CNMs need
ACNM offers some excellent resources, including Getting Paid and the Administrative
Manual for Midwifery Practices. The Administrative Manual is produced by the Midwifery
Business Network, an organization composed of ACNM members that offers education
on the business aspects of midwifery practice.
The ACNM Website is constantly posting resources and all CNMs should scroll through
the homepage on a regular basis. One of the best resources is Home Birth: Resources
for Payer and Policymakers. One of many links on this page is a publication by the
National Business Group on Health, “Investing in Maternal and Child Health.” It names
CNMs and Certified Midwives first on the list of providers women should consider, and
recommends health plans develop CNM-friendly benefit packages.
The CNAP Web site, www.cnaptexas.org, has a good section on reimbursement. It
explains most basic information that APRNs need to know and answers the most
common questions. That website also has links to other sources on reimbursement.
to access additional resources.
This manual gives the basic information needed to research state and federal laws, rules
and policies. Entering key words into any major search engine can also result in very
helpful information.
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Texas Midwives
Scope of
Practice
Certified Nurse Midwives (CNMs)
Licensed Midwives (includes
CPMs)
CNMs independently manage women’s health
care services relating to pregnancy, childbirth,
the postpartum period, family planning, and
routine gynecological needs. They may also
provide normal newborn care and primary health
care for women.
Licensed Midwives may independently
manage women’s health care services
relating to pregnancy, childbirth, the
postpartum period. They also provide
normal newborn care for up to six
weeks of age.
A licensed midwife with appropriate
training and experience may also
provide family planning, and routine
well-woman care according to her
individual protocols.
They consult, collaborate, or refer to other health
professionals for patient care issues outside of
their area of competency.
CNMs may have prescriptive authority delegated
by a collaborating physician if the CNM meets
the requirements of the BON.
CNMs have authority to purchase and use
oxygen, as well as eye ointment for the newborn.
They consult, collaborate, or refer to
other health professionals for patient
care issues outside of their area of
competency.
Licensed Midwives have authority to
purchase and use oxygen as well as
eye ointment for the newborn.
Education
CNMs are registered nurses that have completed
a graduate level program in nurse-midwifery.
CNM educational programs are accredited by the
American College of Nurse Midwives (ACNM).
Accredited programs automatically meet the
standards of the Board of Nursing for the State of
Texas (BON).
There are currently no CNM programs accepting
students in Texas. However, a new program at
Baylor Louise Herrington School of Nursing in
Dallas is seeking ACNM accreditation and is
likely to start accepting students in 2007.
The BON also has continuing education
requirements for advanced practice registered
nurses.
Licensed Midwives are direct-entry
midwives. This means they are not
required to be nurses. Their education
in Texas is based on the current Core
Competencies and Standards of
Practice of the Midwives Alliance of
North America (MANA) and the Texas
Midwifery Basic Information and
Instructor Manual, created and
approved by the Texas Department of
Health.
There are currently three direct-entry
midwifery programs approved by the
Texas Midwifery Board:

The Association of Texas
Midwives Midwifery Program, Tyler

Maternidad la Luz, El Paso

Medical Training Institute of
America Midwifery Program, Dallas
The Midwifery Board also has
continuing education requirements for
Documented Midwives.
Regulation:
Certified Nurse-Midwives are regulated by the
BON. CNMs are licensed as registered nurses
authorized to practice as a category of advanced
Licensed Midwives in Texas are
regulated by The Texas Midwifery
Board under the Texas Department of
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practice registered nurse (APRN).
Approximately 350 CNMs are authorized by the
BON to practice in Texas.
Health (now the Department of State
Health Services) Professional
Licensing and Certification Division.
There are approximately 150 Licensed
Midwives in Texas.
Certification/
Documentation
The BON requires that nurse midwives be
certified, and recognizes the AMCB as the
certification body for CNMs. AMCB develops the
certification exam and sets the requirements for
ongoing certification.
To become Licensed in Texas, a
midwife must:
Standards of
Practice
The BON requires CNMs to follow the most
current Standards of Practice of Midwifery
published by the ACNM.
The Texas Midwifery Board creates
Standards of Practice for Licensed
Midwives. These standards must also
be approved by the Texas Board of
Health.
Practice Settings
CNMs work in a wide variety of settings such as
clinics, hospitals, medical offices, and their own
private practices. The majority of CNM assisted
births are in hospitals, but they also deliver in
birth centers and homes.
Licensed Midwives work in a variety of
settings such as clinics, midwifery
offices, and their own private practices.
Licensed Midwife assisted births are in
birth centers or homes.
Medicaid
Reimbursement
In Texas, Medicaid recognizes CNMs as primary
care providers for women. Medicaid reimburses
CNMs at 92% of the rate paid to a physician for
the same service.
In Texas, Medicaid does not recognize
Licensed Midwives as providers and
does not reimburse for their services.
Professional
Organizations
1. Become Certified by the North
American Registry of Midwives*
(Certified Professional Midwife or
CPM); or
2. Complete her midwifery training
through a state approved midwifery
program and then pass the North
American Registry of Midwives*
(NARM) exam (This process also
qualifies her/him to become a
CPM).
Texas:
Consortium of Texas Certified Nurse
Midwives (CTCNM)
4000 Sunflower Lane
Belton, TX 75613
Texas:
The Association of Texas
Midwives
401 E. Front, Ste 143
Tyler,
Texas
75702
Phone: 903-592-4220
www.texasmidwives.com
www.midwivesofte xas.com/
National: American College of Nurse
Midwives (ACNM)
8403 Colesville Rd, Suite 1550
Silver Spring, MD 20910
Phone 240-485-1800
Fax: 240-4851818
www.midwife.org
National/International:
The North American Registry
of
Midwives
(NARM)
5257
Rosestone
Dr.
Lilburn,
GA
30047
Phone: 1-888-842-4784
www.narm.org
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Chapter 8
The Board of Nursing Disciplinary Process,
TPAPRN, Peer Review & Safe Harbor
Key Points
 The Texas Board of Nursing (BON) exists to protect the public and that mission
supersedes the interests of the nurse, the profession, or any other individual or group.
 The BON protects the public by setting the standards for nursing practice and
education, and enforcing those standards.
 The BON’s enforcement goal is “to ensure swift, fair and effective enforcement of the
Nursing Practice Act (NPA) so that consumers are protected from unsafe, incompetent
and unethical nursing practice by nurses.”
 The BON prioritizes complaints based on the threat to public safety. This results in
less serious complaints taking longer to resolve than more serious ones.
 Resolution of a complaint means Board staff determines the BON has no jurisdiction,
insufficient evidence exists to prove a violation of the Nursing Practice Act (NPA), the
nurse agrees he/she violated the NPA and agrees to an informal settlement, or Board
staff drafts formal charges against the nurse.
 The conduct that could result in disciplinary action against the nurse’s license is
specified in BON Rule 217.12 on unprofessional conduct. Other rules upon which the
Board frequently bases disciplinary action are violations of §213.27, Good Professional
Character; §217.11, Standards of Nursing Practice; §221.12, Scope of Practice; and
§221.13, Core Standards for Advanced Practice.
 The most common BON allegations against APRNs involve practicing beyond the
scope of practice and failure to do any of the following: maintain or follow protocol,
assess, properly diagnose, properly prescribe or administer medications, and maintain
boundaries.
 All criminal convictions for any offense more than Class C misdemeanor traffic
violations must be disclosed to the BON unless the conviction has been expunged,
sealed or under a non-disclosure order. The APRN should be sure to obtain a copy of
the court order expunging or sealing the record of conviction.
 Complaints must be filed in writing. The BON complaint form may be accessed online.
 “Complainant” is the person who reports the nurse to the Board. “Respondent” is the
nurse accused of violating the NPA.
 The identity of the complainant is confidential.
 Nurses suspected of substance abuse, but not engaging in intemperate use while on
duty or other practice violations, may be reported directly to TPAPRN. A report to the
BON is only required if the nurse is believed to have committed a practice violation.
 Nurses and certain other entities are required to report nurses who engaged in
conduct that violated the NPA. That report may be made to the BON or to a nursing peer
review committee, if the APRN being reported works in a setting that has a nursing peer
review committee.
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 Peer Review as described in Chapter 303, Occupations Code, involves a formal
committee that any entity employing 10 or more nurses must establish. APRNs should
understand the difference between this type of Peer Review Committee that stems from
Texas statutes and peer review as a professional mechanism of quality evaluation and
improvement.
 APRNs, like all nurses, may claim “Safe Harbor” if an assignment or request by a
supervisor would violate the APRN’s duty to the patient or any other provision of the
NPA or BON rules. Nurses following the Safe Harbor procedure have certain
protections.
 With the exception of the original complaint, nurses under BON investigation have the
right to copies of evidence the BON has that proves or disproves the allegation/s.
 The BON provides guidance for nurses under investigation. In addition to carefully
reading all notices and instructions from the Board, go to What To Do If You Are Under
Investigation and Frequently Asked Questions About Enforcement.
 If under investigation by the BON, the APRN may need to consult an attorney. That
attorney should be one with experience representing APRNs before the BON.
 The nurse must respond to the initial notice within 20 days. This and any future
response must be complete, accurate, professional and consistent. The nurse should
address each allegation. A general denial is not an appropriate response.
 Complaints may be resolved informally before the BON files formal charges. Any
action against the APRN’s license will be reported to NURsys® data system and the
appropriate national data banks.
 The formal settlement process begins with the notice of formal charges and requires
the respondent to answer each allegation within 20 days of receipt.
 SOAH stands for State Office of Administrative Hearings. Contested cases that cannot
be settled informally at the BON are heard by an administrative law judge at SOAH.
 For violations of the NPA, the BON may impose several levels of disciplinary actions
including remedial education, warning, reprimand, suspension or revocation.
 Passage of SB 1415 in 2009 enables the BON to establish a pilot program to defer
disciplinary action in certain cases that do not result in a reprimand, denial suspension or
revocation of the license.
 Passage of SB 1415 also permits the board to take corrective action in the form of a
fine and/or remedial education. Since this is not disciplinary action, it is not subject to
public disclosure or reporting to the national practitioner databanks.
 An Agreed Order is a disciplinary order and still subject to public disclosure.
 TPAPRN stands for Texas Peer Assistance Program for Nurses. The program is
operated by the Texas Nurses Association and successfully completing the TPAPRN
allows nurses with mental health or substance abuse problems to maintain their nursing
license.
 If the BON suspends or revokes a nursing license, the nurse must petition the Board
to reinstate the license.
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Introduction
The Texas Board of Nursing (BON or Board) was created in 1909 with enactment of the
Texas Nursing Practice Act. For 100 years, the BON’s mission has essentially been the
same: “to protect and promote the welfare of the people of Texas by ensuring that each
person holding a license as a nurse in the State of Texas is competent to practice
safely.”152
As mentioned in Section 2.4, sometimes nurses expect the BON to be on the nurse’s
side. While the board must be fair to the nurses it regulates, the BON protects the
public’s interests, not the nurse’s. One must not make the mistake of thinking the BON
will overlook matters, be sympathetic or understand hardships when the nurse’s situation
places the public in danger, or just has the potential to do so. As stated on its website,
the BON’s mission to protect the public “supersedes the interest of any individual, the
nursing profession, or any special interest group.”153 Advocacy is the role of professional
organizations. Nurses should never make the mistake of confusing the role of the Board
of Nursing, a state agency, with the role of a professional organization such as those
described in Chapter 3 of this manual.
Usually the public’s and nurses’ interests coincide. The Board wants Texans to benefit
from the care that competent nurses provide. However, when the public’s and nurse’s
interests conflict, the nurse facing disciplinary proceedings can be taken off guard if
Board staff or members appear unfriendly, unsympathetic or even adversarial.
Nurses must understand the adversarial nature of the disciplinary process. As stated
above, Board members and staff represent the public’s interests. The nurse’s
responsibility is to represent her/his interests. Additionally, holding RN and APRN
licenses are privileges, not rights. As a result, all licensing boards, such as the BON,
while required to ensure licensees certain due process rights, do not provide all the
rights that would be afforded a person faced with a criminal charge. However, every
APRN must understand the rights they do have.
The purpose of A Guide for APRN Practice in Texas is to help APRNs understand the
legal aspects of their practice in order to avoid violating the Nursing Practice Act. This
chapter furthers that purpose by explaining some of the violations that most frequently
cause APRNs to be disciplined with the goal of helping other APRNs avoid those pitfalls.
However, even if an APRN’s practice is above reproach, any APRN can be involved in a
Board investigation. By statute, the Board must investigate all complaints alleging a
violation of the Nursing Practice Act (NPA), but not all allegations filed against RNs
result in disciplinary action. In 2005, 3,398 complaints against RNs were resolved. Of
those, only 996 resulted in disciplinary action against the nurse’s license.154 Regardless
of the complaint’s validity, when an APRN receives notice from the BON that he or she is
the subject of a complaint, it is imperative that the APRN understands the disciplinary
process and the nurse’s rights and responsibilities during that process.
8.1 Overview of BON Disciplinary & Enforcement Functions
The Board of Nursing derives its authority to regulate the practice of nursing from the
Texas Legislature. Through the Nursing Practice Act, the Legislature establishes the
Board’s structure and functions. The following lists the BON’s disciplinary and
enforcement functions.
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 Setting minimum standards for nursing practice and nursing education
 Determining if criminal convictions or deferred adjudication for an offense constitute
grounds for the board to take action against a nurse (§301.1545, 301.453, TOC)
 Receiving, investigating and adjudicating complaints or reports against nurses
(§301.159, 301.161, §301.401 - .410, §301.457, Texas Occupations Code)
 Identify, refer and assist those nurses whose practice is impaired through peer
assistance
Enforcement is one of the BON’s four departments and is the largest of the
departments.155 Almost 49% of the agency’s total legislative appropriation is targeted to
address enforcement and peer assistance.156
The BON’s stated enforcement goal is “to ensure swift, fair and effective enforcement of
the Nursing Practice Act so that consumers are protected from unsafe, incompetent and
unethical nursing practice by nurses.”157 Meeting this goal means that complaints
representing an immediate threat to the public are investigated first. Complaints are
investigated according to the priority established in BON Rule §213.13(c).
22 TAC §213.13(c) (Board of Nursing Rules)
(c) Complaints shall be assigned a priority status:
(1) Priority 1--those indicating that credible evidence exists showing a guilty
plea, with or without an adjudication of guilt, or conviction of a serious crime
involving moral turpitude; a violation of the NPA involving actual deception, fraud,
or injury to clients or the public or a high probability of immediate deception, fraud
or injury to clients or the public;
(2) Priority 2--those indicating that credible evidence exists showing a violation
of the NPA involving a high probability of potential deception, fraud, or injury to
clients or the public;
(3) Priority 3--those indicating that credible evidence exists showing a violation
of the NPA involving a potential for deception, fraud, or injury to clients or the
public; and
(4) Priority 4--all other complaints.
While this prioritization is necessary for public protection, it can result in more serious
complaints being resolved in a shorter time than much less serious ones. The average
complaint is resolved in approximately 150-160 days.158 However, that time frame only
includes the point at which staff determines insufficient evidence exists to substantiate
the allegation or drafts formal charges.159 Therefore, the time between the Board
notifying the nurse of a complaint and final settlement can stretch to a year or two, and in
contested cases, even longer. This is often very frustrating to the nurse who may be
experiencing negative consequences from being the subject of a BON investigation.
This makes it all the more important that APRNs understand the BON process, and the
nurse’s rights in that process.
8.2 Behavior that May Result in Disciplinary Action
The BON’s website begins the section titled, “How to File a Complaint Regarding
Nursing Practice,” by explaining actions for which a nurse can be disciplined by the
Board. In part, that section reads as follows.
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Complaints are received about practice or behavior which could be a violation of
the Nursing Practice Act (NPA), and may include, but not limited to, the following:
 Behaviors which likely expose a patient or other person unnecessarily to the
risk of harm;
 Unprofessional conduct by the nurse, as defined by 22 Tex. Admin. Code
§217.12;
 Failure to adequately care for a patient;
 Failure to conform to the minimum standards of acceptable nursing practice,
as defined by 22 Tex. Admin. Code §217.11; and/or
 Impairment or likely impairment of the nurse’s practice by chemical
dependency, alcohol or mental illness.
However, the Board does not normally address complaints about rudeness of a
nurse to co-workers, violations of hospital policies, and general employeremployee issues.
Subchapter J of the Nursing Practice Act is titled “Prohibited Practices and Disciplinary
Actions. Sections 301.451 – 301.452 delineate the conduct upon which the Board may
take action. The following list summarizes such prohibited conduct. Those items noted
by an asterisk may also result in criminal actions.
1. Violation of the NPA, a BON rule or Board order
2. *Fraud or deceit in procuring or furnishing a license to practice nursing or practicing
nursing under a diploma, license or record obtained falsely
3. *Practicing nursing while the nurse’s license is suspended or revoked.
4. Conviction or placement on deferred adjudication community supervision, or deferred
disposition for a felony or for a misdemeanor involving moral turpitude
5. Revocation of probation imposed for conviction of a felony or misdemeanor involving
moral turpitude
6. Impersonating or acting as a proxy for another person in the licensing examination
7. Aiding or abetting an unlicensed person in the unauthorized practice of nursing, even
if only indirectly doing so
8. Revocation, suspension, denial of, or any other action relating to the nursing license
or privilege to practice nursing in another jurisdiction
9. Intemperate use of alcohol or drugs (being on duty, on call, or otherwise practicing
nursing while under the influence of alcohol or drugs)
10. Unprofessional or dishonorable conduct likely to deceive, defraud or injure a patient
or the public
11. Mental incompetency
12. Lack of fitness to practice because of a mental or physical health condition
13. Failure to care adequately for a patient or to conform to minimum standards of
acceptable nursing practice
Section 301.4535 specifies the criminal offenses for which the Board must suspend,
revoke or refuse to license a nurse. The following is a list of those criminal convictions.
1. Murder or manslaughter
2. Kidnapping or unlawful restraint
3. Sexual assault or aggravated sexual assault
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4. Sexual abuse of a child or indecency with a child
5. Aggravated assault
6. Knowingly or recklessly injuring a child or an individual who is elderly or disabled
7. Knowingly or recklessly abandoning or endangering a child
8. Aiding suicide if punished as a state jail felony
9. Violating a protective order
10. Agreeing to abduct a child from a person having court-ordered custody
11. Sale or purchase of a child
12. Robbery involving injury or threat of bodily injury
13. An offense for which the person is required to register as a sex offender
14. An offense under the Uniform Code of Military Justice or any other state or federal
law that contains substantially similar elements to those listed above.
The sections of the NPA cited above serve as the basis for the BON Rules that are the
grounds upon which the Board can take disciplinary action against a nurse or refuse an
applicant a nursing license. These rules include the following:





213.27
213.28
213.29
217.11
217.12
Good Professional Character;
Licensure of Persons with Criminal Offenses ;
Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters;
Standards of Nursing Practice; and
Unprofessional Conduct .
Two rules specific to APRNs are also frequently cited in disciplinary orders for APRNs.
These two rules are:
 221.12 Scope of Practice; and
 221.13 Core Standards for Advanced Practice.
The guidance offered in these rules is general. Therefore, as noted in Chapter 1, the
Board offers additional guidance on its APRN webpage. Also, Sections 1.5, 2.6, 2.9,
and 4.2 - 4.22 of this APRN Guide offer specific guidance on issues addressed in these
rules.
The Board also has policies concerning certain offenses, such as sexual misconduct or
fraud, and how those offenses relate to the practice of nursing. These policies help
nurses understand the range of behaviors related to these offenses that may result in
disciplinary action. They also help nurses who have been convicted of certain types of
criminal offenses know what action might be taken against their license, how the nurse’s
current fitness might be evaluated, and what behavior might lead to reinstatement if the
Board took action against the nurse previously. The following policies are listed on the
Board’s website.160
 Disciplinary Sanctions for Sexual Misconduct
pdf
 Disciplinary Sanctions for Fraud, Theft and Deception pdf
 Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or other Substance Use Disorder pdf
 Disciplinary Sanctions for Lying and Falsification pdf
In addition to these policies, the Board has an extensive list of “Disciplinary Guidelines
for Criminal Conduct.” These are factors the Board utilizes in evaluating the fitness of
persons previously convicted of one or more criminal offenses to practice nursing. This
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list helps nurses understand the evidence likely to demonstrate good professional
character and fitness to practice nursing.
Conduct Resulting in Disciplinary Actions Against APRNs
CNAP conducted a review of the Board orders involving sanctions against APRNs from
1998 through February 2008. The most common lapse was administrative in nature.
The APRN failed to renew the nursing license, renew the APRN authorization at the time
of RN license renewal, or APRNs graduating after January 1, 1996, failed to maintain
national certification in their role and population-focus. The second most common
reason the Board imposed a sanction on the APRN’s license involved substance abuse.
These two groups constituted, by far, the majority of disciplinary actions.
The most common practice violation among APRNs was failure to maintain the required
protocol for delegating authority to diagnose and prescribe. Failure to maintain a safe
environment for patients and creating a potential harm to patients were frequently cited
as the Board rules that were violated. Usually, these violations related to the APRN
acting outside the scope of practice or failure to properly assess and/or document the
patient’s condition. A few APRNs were also cited for failing to consult with a physician
when the patient’s condition indicated they should do so. APRNs have been cited for
failing to diagnose and prescribe correctly. Several APRNs were disciplined for failure to
administer drugs correctly, and some of these cases involved APRNs that were not
functioning in their APRNs roles, but working as RNs.
One other issue resulting in discipline against APRNs deserves special mention.
Maintaining appropriate boundaries with patients has always been important, but the
Board views the parameters for boundary violations more narrowly than it did a couple of
decades ago. Having a relationship with any current patient is inappropriate. Prescribing
for friends and family is not acceptable.161 Even if family members are patients of the
practice where the APRN works, it is always best that another provider treats those
family members. It can even be a violation of professional boundaries to have a
relationship with persons who have been patients in the past. This is especially an issue
for APRNs specializing in psychiatric-mental health or for any APRN treating a mental
health condition.
As more criminal background checks are being conducted on APRNs, a few APRNs
are being sanctioned for failing to disclose a previous criminal violation. Usually these
non-disclosures are inadvertent and related to the fact that the APRN thought a long-ago
conviction had been expunged or that convictions for which the APRN received deferred
adjudication did not need to be reported.
The BON makes it very clear that is not the case. The following statement is on the
BON’s webpage titled “Renewal Information.”
You may only exclude Class C misdemeanor traffic violations or offenses
previously disclosed to the Texas Board of Nursing on an initial renewal
licensure application.
NOTE: Expunged and Sealed Offenses: While expunged or sealed offenses,
arrests, tickets, or citations need not be disclosed, it is your responsibility to
ensure the offense, arrest, ticket or citation has, in fact, been expunged or
sealed. It is recommended that you submit a copy of the Court Order expunging
or sealing the record in question to our office with your application. Failure to
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reveal an offense, arrest, ticket, or citation that is not in fact expunged or sealed,
will at a minimum, subject your license to a disciplinary fine. Non-disclosure of
relevant offenses raises questions related to truthfulness and character.
NOTE: Orders of Non-Disclosure: Pursuant to Tex. Gov’t Code § 552.142(b), if
you have criminal matters that are the subject of an order of non-disclosure you
are not required to reveal those criminal matters on this form. However, a
criminal matter that is the subject of an order of non-disclosure may become a
character and fitness issue. Pursuant to other sections of the Gov’t Code chapter
411, the Texas Nursing Board is entitled to access criminal history record
information that is the subject of an order of non-disclosure. If the Board
discovers a criminal matter that is the subject of an order of non-disclosure, even
if you properly did not reveal that matter, the Board may require you to provide
information about any conduct that raises issues of character.162
The take home lesson from orders citing APRNs for failing to disclose prior convictions is
to disclose any criminal brushes with the law, even if the result was deferred
adjudication. Conviction for anything more than a Class C misdemeanor traffic violation
must be disclosed. Driving under the influence (DUI) does not constitute a minor traffic
violation and must be disclosed.
Disciplinary Actions Taken Against APRNs from 1998-2007
On average, about 2.6 cases in each of the 10 years from 1998 through 2007 involved
serious patient outcomes. However, it appears that the vast majority of APRNs are
practicing very safely. Of the number of APRNs authorized to practice in the state, the
number of APRNs disciplined by the BON in each of those 10 years ranged from 0.004%
in 1998 to almost 0.04% in 2007, averaging 0.023% for all of the 10 years. It is worth
noting that the BON is widely considered to be the strictest professional health care
licensing board in the state, so the fact that so few disciplinary actions are taken against
APRNs is particularly significant.
Avoid Disciplinary Actions by Staying Up to Date on Law
Nurses are required to comply with the Nursing Practice Act and Board rules. Only the
Texas Legislature can change the NPA so changes only occur every two years. The
most recent legislative changes are usually summarized on the NPA page of the BON’s
website.
While statutory changes occur in a predictable cycle, rules can be amended any time.
The best source of information on rule changes is the BON Website, and the Texas
Board of Nursing Bulletin. Legislative and regulatory changes are also usually explained
in the “BON News” section of the website.
The BON also hosts work shops on the regulatory foundations of safe practice. These
work shops are usually offered about three times a year for RNs. For APRNs, the work
shops are offered less frequently. Dates are listed in the Meetings and Events section of
the BON Website.
The Coalition for Nurses in Advanced Practice publishes information on the legislative
and regulatory basics of APRN practice on its website, www.cnaptexas.org. CNAP also
sends email updates that can include significant changes in the statutes and rules
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affecting APRNs. APRNs who join CNAP member organizations automatically receive
these email updates.
Avoid Disciplinary Actions by Asking for Guidance Appropriately
If taking a new job or being asked to assume a new assignment, the APRN must ask
questions and assess if the job or assignment includes only activities that are within
his/her scope of practice. The APRN must be sure s/he is not being asked to do
anything that would violate the NPA or BON rules. Obviously, this Guide for APRN
Practice in Texas and the BON Website are the best sources of information for initial
research. If, still unsure, then ask for additional guidance. Lynda Woolbert, co-author of
this APRN Guide, answers many questions of this nature. Lynda may be reached at
[email protected]. She can also help APRNs understand if they should contact
Jolene Zych, the BON APRN Practice Consultant.
If contacting Board staff, the APRN must make it clear that s/he is considering a job or
assignment and is asking for guidance on that basis. Be aware that if any nurse asks
Board staff about conduct in which the nurse is currently engaging, if it is a violation of
the NPA or Board rules, the staff member will tell the nurse to immediately cease the
activity and will be obligated to file a complaint reporting the conduct.
8.3 The Complaint
APRNs may be the complainant (the one who files the complaint) or the respondent (the
licensee suspected of violating the Nursing Practice Act). This section discusses both
aspects of the complaint process. The BON’s website includes a page titled, “Complaint
Process.” Although this section includes some of the information on that webpage,
anyone contemplating filing a complaint or any APRN against whom a complaint is filed
should also read the Complaint Process webpage.163
Conduct that Must Be Reported and Who Must Report
While anyone may submit a complaint to the BON against a nurse, §301.402(b) of the
Nursing Practice Act requires nurses to report other licensees to the Board if the
nurse reasonably suspects another nurse engages in any of the following conduct that is
subject to reporting.
The nurse:
(A) violates the Nursing Practice Act or a board rule and contributed to the death
or serious injury of a patient;
(B) behaves in a way that indicates the nurse’s practice is impaired by chemical
dependency or drug or alcohol abuse;
(C) abuses, exploits, commits fraud, or violates professional boundaries; or
(D) lacks knowledge, skill, judgment, or conscientiousness to such an extent that
the nurse’s continued practice poses a risk of harm to a patient or another
person, arising from a single incident or a pattern of behavior.
The BON Rule addressing this issue is §217.11(1)(K). The rule reinterates the
requirements in paragraphs (A), (B) and (C) stated above. Then offers the nurse
additional information on paragraph (D) by stating that a nurse is not required to report
minor incidents, chemical dependency being treated through peer assistance if no
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practice violation occurred, or cases that are peer reviewed.cvi It is important to note that
the nurse’s duty to report includes self-reporting. This is especially imperative when the
APRN thinks his or her actions may have contributed to the death or serious injury of a
patient and the case is not subject to peer review (as would be the case if the death
occurred in an office setting.)
In addition, a nurse is also required to report nursing students if the student is impaired
by chemical dependency. However, it is permitted to report nurses and nursing students
directly to the Texas Peer Assistance Program for Nurses (TPAPRN) if they are
suspected of impairment because of substance abuse or mental illness. If the nurse
also committed a practice violation such as drug diversion or being impaired while on
duty, then §301.410 requires reporting the nurse to the BON.
Health care facilities and other entities are also required to report nurses that the entity
determines engaged in the above conduct. These entities include peer review
committees, nursing educational programs, and employers. Employers required to
report include hospitals, health science centers, nursing homes, home health agencies,
state agencies, political subdivisions, schools of nursing or temporary nursing services.
These entities are required to report any nurse it terminates or suspends for more than
seven days.164
State agencies that license hospitals, nursing homes, home health agencies or other
health care facilities are also required to report a nurse if an audit or inquiry reveals
nursing care provided in the facility is substandard. In some cases, in the course of
investigating a physician, the Texas Medical Board (TMB) will discover that the APRN
may also have committed violations of the NPA. In this case, the TMB reports the nurse
to the BON.
Malpractice insurance companies are required to report. Within 30 days of a
complaint filed in court naming an insured nurse, or a judgment, dismissal or settlement
of a suit (or claim paid not involving a law suit) paid on behalf of an insured nurse, the
insurance company must file a report with the BON if the action arises from nursing care
that was or should have been provided.165
Prosecuting attorneys, through the court’s clerk, must report any conviction,
adjudication or finding regarding a nurse or a nursing license applicant charged with a
felony, misdemeanor involving moral turpitude, violation of a narcotics or controlled
substances law, or offense involving fraud or abuse under the Medicare or Medicaid
Program. The report must be filed even if the the conviction is withheld or appealed.166
In summary, there are many avenues through which information may be reported to the
BON that will result in an investigation. APRNs need to be aware of circumstances that
trigger a report to the BON so the APRN can be prepared if they are involved in one of
those situations. It will also help them understand when and what they must self report,
such as being involved in an error that contributed to serious injury or death of a patient.
cvi
Texas Board of Nursing Rule 217.11(k)(iv) and (v) offer additional cross references as follows: minor
incidents (Texas Occupations Code §§301.401(2), 301.419, 22 TAC §217.16), peer review (Texas
Occupations Code §§301.403, 303.007, 22 TAC §217.19), or peer assistance if no practice violation (Texas
Occupations Code §301.410) as stated in the Nursing Practice Act and Board rules (22 TAC Chapter 217).
251
Protections for Complainants
Complainants are assured confidentiality. The BON de-identifies documents to protect
the identity of the person filing the complaint. The only time a complainant might be
compelled to reveal themselves is when the BON requires their testimony in order to
prove the case before an administrative law judge.
The Legislature affords confidentiality for complainants to encourage them to come
forward. In this case, the Legislature determined that the interests of public safety are
greateer than the right of the accused to face their accuser (as would be the case in a
criminal proceeding).
Those who, in good faith, report nurses to the Board are also afforded other protections.
Sections 301.412- .413, Occupations Code, protect complainants from civil liability or
other retaliatory action. Therefore, a complainant has additional rights if named in a civil
law suit or if other retaliatory action, such as loss of employment, resulted from reporting.
These protections extend to any person reporting conduct by a nurse to the BON or to a
nursing peer review committee, if the person acted without malice and reasonably
assumed such a report was required under the Nursing Practice Act.
Writing and Filing the Complaint
Complaints must be filed in writing. BON Rule §213.13(a) lists the content that must be
included in the complaint.
22 TAC §213.13(a) (BON Rule)
(a) Complaints shall be submitted to the Board in writing and should contain at
least the following information: Nurse/Respondent Name, License Number,
Social Security Number, Date of Birth, Employer, Dates of Occurrence(s),
Description of Facts or Conduct, Witnesses, Outcome, Complainant Identification
(Name, Address, and Telephone Number), and Written Instructions For Providing
Information to the Board. Complaints may be made on the agency's complaint
form.
Below is more information on each of these elements.
 Respondent Identification - In order for Board staff to take action on the complaint it
must identify the nurse by name. The Board also needs the birth date, RN license
number and Social Security Number to avoid mis-identifying the nurse. The BON’s
Enforcement Department will try to identify the nurse if they do not have all the
identifying information, but the more common the name, the more likely it will be that
investigators must have the Social Security number, the RN license number, or at
least the date of birth in order to act on the information in the complaint.
 Incident / Behavior Reported - Board staff also need as much detail as possible about
the behavior or incident being reported, including dates, and appropriate
identification, including patient record numbers, for any patients involved. Again, if the
complainant does not have access to all that information, the Enforcement
Department will try to gather the information needed. However, details allow the
Director of Enforcement to determine much more quickly if the Board has jursidiction
on the matter, whether a violation of the NPA may have been committed, and if so,
assign priority as explained in Section 8.1.
 Complainant Identification - It must also include the name and contact information of
the person filing the complaint.
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Complaint forms are available online at http://www.bon.state.tx.us/about/pdfs/cmplt.pdf.
The Board does not require the complaint to be submitted on the Board’s complaint
form. However, it must contain all the required information and it is easier to ensure the
complaint is complete if using the form. The form also includes instructions. Reports
may be submitted by faxing to (512) 305-6870, or by mailing to the following address:
Texas Board of Nursing, Enforcement, Suite 3-460, 333 Guadalupe St, Austin, Texas
78701.
8.4 Reporting to Peer Review or Claiming Safe Harbor
The Nursing Practice Act and BON Rules permit a nurse the alternative of either
reporting another nurse to the BON or reporting to a peer review committee.167 Under
Chapter 303, Occupations Code, any person, facility, school of nursing, nursing
association or state agency employing 10 or more nurses on a regular basis, five or
more of which are RNs, must establish a peer review committee for professional
nurses.168 If the APRN works in a facility (whether employed, contracted or priviledged)
that has a nursing peer review committee, the APRN should be familiar with the policies
and procedures involving that committee.
Structure and Functions of Nursing Peer Review Committees
Peer review committees evaluate the nursing services, the qualifications of a nurse, the
quality of patient care given by a nurse (including the accuracy of the assessment), and
the merits of a complaint concerning a nurse or nursing care. The committee
recommends or determines the actions that should be taken regarding a complaint.
These actions include reports to patient safety committees regarding processes that may
have contributed to an error and reports to the Board of Nursing if a nurse violated the
NPA. If the peer review committee reports a nurse to the BON, the report must include
an assessment of the extent to which failures in processes or systems (external factors)
may have contributed to the error versus the nurse’s lack of knowledge, training or
judgement.169
If actions of an APRN are peer reviewed, the committee should ensure that at least one
member is another APRN with a working familiarity of the area of practice. It is possible
for a physician to serve on the committee. However, at least two-thirds of committee
members must be RNs and only RNs are entitled to vote.170 A nurse undergoing peer
review has the right to receive notice of the proceedings. If the committee makes an
adverse determination against the nurse, the nurse has the right to submit a rebuttal
statement and that rebuttal must be included in any records shared with other entities,
including reports to the BON.171 If the facility terminates or suspends the nurse for seven
days or longer for a reason involving practice, the peer review committee must report the
nurse to the BON.172
Discussions and actions taken by a nursing peer review committee are confidential and
all committee members and participants must maintain that confidentiality. This
information is even protected from discovery in cival law suits and as evidence in judicial
or administrative hearings. However, §§303.007 and 303.0075, Occupations Code,
requires the committee to share information with state agencies that have licensing
authority and law enforement agencies investigating a criminal matter. The committee
also may share information, including records of the proceedings with the entity that
established the committee, including that entity’s patient safety committee. It also may
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share information with peer assistance programs, other peer review committees, certain
state or federal agencies or accrediting organizations.
Any entity required to implement a peer review process should purchase Texas Nurses
Association’s publication titled, ABCs of Nursing Peer Review. The manual may be
purchased from TNA’s website.
Procedure and Rights for Nurses Claiming Safe Harbor
Sometimes nurses, including APRNs, are caught between their duty to a patient (as
outlined in the Nursing Practice Act and specified in BON rules) and requests or
assignments made by their employers or supervisors. When this occurs, the NPA
affords nurses certain protections if the APRN or other nurse follows the Safe Harbor
process.
Safe Harbor is defined in BON Rule 217.20(a)(15) as follows:
(15) Safe Harbor--A process that protects a nurse from employer retaliation and
licensure sanction when a nurse makes a good faith request for peer review of
an assignment or conduct the nurse is requested to perform and that the nurse
believes could result in a violation of the NPA or Board rules. Safe Harbor must
be invoked prior to engaging in the conduct or assignment for which peer review
is requested, and may be invoked at anytime during the work period when the
initial assignment changes.
Every APRN should be familiar with §301.352, Occupations Code, BON Rule 217.20
tilted “Safe Harbor Peer Review for Nurses and Whistleblower Protections,”and be able
to readily access the safe harbor peer review rules, forms and information on the BON’s
website.173
An APRN should claim safe harbor when a supervisor or employer asks the APRN to do
something (a comission), or not to do something (an omission), that the APRN thinks
violates the NPA. The term, “safe harbor” is applied because it protects the nurse from
action by the BON if the activity violates the NPA and the APRN chooses to engage in
the activity while the issue is under peer review. It also protects the APRN from adverse
action by the employer if the nurse refuses to engage in the conduct that the APRN
believes violates the NPA or if the nurse reports unsafe conduct by the employer or
others.
An example of behavior that might constitute an omission is being asked not to order a
diagnostic test that the APRN knows is necessary in order to properly diagnose the
patient’s condition. Often differences about ordering a test are simply a matter of
opinion. However, if the APRN were asked not to order a chest x-ray for a patient who
has a chronic cough and a past history of smoking, failure to order the chest x-ray would
violate the standard of care. The APRN’s duty to the patient is to perform a proper and
thorough assessment. This may include certain tests or procedures, as long as the
patient agrees to undergo the test.
An example of a comission that would violate the NPA is altering a medical record to
reflect incorrect information. To do so would put the patient at risk by not providing
accurate information in the medical record. A more common example is the APRN being
asked to do a procedure or care for patients that exceeds the APRN’s education and
training. Just having a physician say that he or she is delegating the patient care activity
does not absolve the APRN of the obligation under BON Rule 217.11(1)(T) to only
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accept assignments for which the APRN is properly educated and trained. The APRN
can certainly meet the employer half way by obtaining the necessary education or
training. However, in some cases the APRN cannot meet BON requirements short of
completing formal education. This would be the case if a WHNP were asked to treat a
male patient for a primary care related illness.
When the APRN invokes safe harbor under §301.352, Occupations Code, the APRN
must also decide whether to accept or refuse the assignment. Section 301.352 does not
limit when a nurse may refuse, but the general idea behind safe harbor is that patients
are generally safer with the nurse than without the nurse. Therefore most of the time it is
hoped that by protecting the nurse's license the nurse will engage in the conduct. BON
Rule 217.20(g) offers guidance on when it may be more appropriate to refuse. Examples
of situations in which it would be more appropriate to refuse engaging in the conduct are
being asked to: 1) falsely document, 2) commit a crime, such as seeking reimbursement
for services not provided, or 3) engage in conduct so far exceeding the nurse's scope
that engaging in the conduct is likely to expose patients to unjustifiable risk of harm.174
When asked to engage in conduct that the APRN has reasonable grounds to believe
would violate the NPA, the first step for the APRN is to explain the violation to the person
making the request. If an accommodation cannot be reached with that individual, if
possible, pursue the issue through the chain of command. However, if there is no time
or efforts to reach an agreement are not successful, then the nurse must invoke safe
harbor. The nurse may complete the Safe Harbor Quick Request Form or simply write
and sign a statement that includes the following information.
1.
2.
3.
4.
5.
6.
Nurse(s)’ name(s) invoking safe harbor;
Date and time or the request;
Location of the requested conduct or assignment;
Name of nurse(s)’ supervisor making the assignment or requesting the conduct;
Brief explaination of the reason for invoking Safe Harbor; and
Document collaboration between nurse(s) and supervisor. (This is only required if
refusing to engage in the conduct, but it is wise to include regardless.)
If the conduct being requested of the APRN would not unduly endanger patients or
constitue a criminal act, then the APRN may complete the assignment knowing that the
questionable conduct will not be subject to disciplinary action by the BON. Then, before
leaving the location, the nurse must complete the Comprehensive Request for Safe
Harbor Nursing Peer Review form. This form contains specific instructions and an
explanation of the Safe Harbor process outlined in BON Rule 217.20.
8.5 What To Do If Under Investigation
First, take a deep breath and remember that most complaints are closed without taking
any action against the nurse. If the Board determines a report is without merit and the
case is closed, the Board expunges the report from the nurse’s file.175
Read the notice carefully and try to be as objective as possible. Also read the next two
sections of this APRN Guide. Sections 8.6 and 8.7 are designed to guide you through
the initial steps of the process and help you focus on what you need to do. You should
also refer to the following references on the BON website.176
 Investigatory & Disciplinary Process
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

What To Do If You Are Under Investigation,
Frequently Asked Questions About Enforcement
Keep excellent written records. This is the time to employ your best documentation and
organizational skills. From the moment you receive the first indication a complaint has
been filed to the time you receive final notice that the case is dismissed or your license
has been restored to an unrestricted and unencumbered status, keep all
correspondence, including email communications. Immediately write a summary of any
telephone or face-to-face conversations. Be sure to include the person’s name, their
contact information, and the date of the communication.
If you review the chart of a patient named in the complaint, be sure to log that
information along with the person present when you reviewed the chart and ask that
person to sign a statement attesting that you did not alter the chart. Also include a
summary of your impressions of the quality of your documentation and treatment plan,
noting anything you might have done differently. If you retain an attorney or talk with
other persons about the case, keep records of those conversations. Writing is one of
the best ways to gain clarity on a situation, and these records may be necessary if you
need to defend yourself.
Should I Call an Attorney? What Support System Should I Enlist?
There is no absolute answer to the question about when to call an attorney or which
attorney might be best. Certainly, not every case requires legal representation, but only
you can make this decision based in your circumstances and the facts. Read the notice
and review applicable statutes, rules and board position statements. If you then agree
you committed the alleged conduct and that the conduct appears to be a violation, then
you may feel your best course of action is to admit wrong doing and settle as quickly as
possible. However, expediency should never replace a well considered decision on the
issue of legal representation with an understanding that advice from the right,
competent attorney can be very valuable.
The question of representation, like any other decision that is very important to your life
and career, needs to be made with a healthy dose of common sense and balance of
competing interests. Unfortunately, a notice that a complaint has been filed is inevitably
accompanied by a flood of emotion that sometimes triggers a maladaptive response
instead of a functional one. For this reason, the first person you should consider calling
is probably not an attorney, but a professional colleague or acquaintance.
This is the time to select an intelligent, savvy confidant that understands the
professional issues and can inject common sense and perspective when your own is
lacking. Consider selecting someone outside your immediate community. You need
someone with good emotional boundaries who will offer a balanced opinion, not one
who will jump to your defense no matter what you have done or, on the other extreme,
criticize you. In other words, your mother or spouse is probably not the right person for
this job.
In your initial conversation with this person, you should ask for their confidentiality and
make it clear that you are asking them to be a sounding board and to offer perspective.
If this is the right person, they will probably be complimented that you asked. That
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being said, if they refuse to serve in that role or do so and disagree with your opinion,
you must accept that and consider their input as objectively as possible.
This confidant cannot substitute for sound legal advice. You are looking to this person
as the voice of reason and as a source of clarity. You should never substitute anyone’s
judgment for your own, but it can help to have someone willing to occasionally allow you
to vent and who can still help you sort through alternatives. If the “job description” for
this person resembles a counselor, that is probably no coincidence. The right person for
this job may, in fact, be a professional counselor.
Readers will note that at certain points in the investigation process, the author
recommends consulting an attorney, but always stipulates that it should be an attorney
familiar with handling cases at the Board. Administrative law is like any other area of
legal specialty. It requires expertise. It is also helpful if the attorney is one who is
acquainted with board staff and understands how they normally think and react. To a
large extent, shopping for an attorney is like shopping for a psychological counselor.
You are likely to know the right person when you find them, and if you aren’t
comfortable with that individual after a personal interview, then do not retain them.
The attorney should be interested in achieving the best possible result for you; not in
contesting the case for as long as possible. The attorney should also be one with whom
you communicate well, in that you can understand their explanations and they make
sense to you. With that being said, you do not have to like your attorney like a friend.
You need someone articulate, who will represent your interests well; one not afraid of
confrontation, but doesn’t create confrontation unnecessarily.
This is not the time to select an attorney only based on price (be that high or low) or
convenience to your location. Fortunately, electronic communication allows a great deal
of flexibility and you can usually work effectively with an attorney that is not located near
you. Because the licensing board is in Austin a lot of attorneys who specialize in
administrative law before the Nursing Board are Austin-based. However, there are
certainly many competent attorneys located throughout the state.
One resource to focus your search is the Internet, although claims must be regarded
with as much skepticism as medical advice on the Web. However, this information can
help you evaluate aspects of your case, and find an attorney that would otherwise be
unknown to you. The advice offered below by Taralynn Mackay, RN, JD, in her blog
entry dated February 19, 2008, is sound.cvii
So, how does a nurse determine whether a lawyer is experienced? Look at the
attorney’s background. Look for a lawyer that is focused on the Board of Nursing.
Ask what other areas of law they practice. Ask if they are Board Certified in
Administrative Law. Go to the State Bar Website and look up information about
when they graduated and what area they indicate as their area of practice. Ask
how many years they have been representing nurses before the Board.177
Inclusion of Ms Mackay’s statement does not indicate an endorsement of her legal services. The author
does not know Ms. Mackay, has not spoken to her, or know anyone who has been represented by her. Her
statement is included because it offered excellent guidance for criteria to use in selecting an attorney.
cvii
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There are two additional questions. Has the attorney represented APRNs before the
Board, and what type of cases for APRNs has the attorney handled? Also, to verify the
credentials of an attorney on the State Bar Website, go to “Find a Lawyer” at the bottom
of the left navigation tool bar.178
Behavior When Under Investigation
The Texas Medical Liability Trust (TMLT) recently published, Understanding the Texas
Medical Board – a resource for physicians. It contains excellent guidance on the
behavior a physician should exhibit when the subject of a TMB investigation. This
information is equally applicable to APRNs undergoing a Board of Nursing investigation.
Be professional. An investigation is, in many ways, a test itself. It is stressful
and scary, but if you react in an unprofessional manner toward Board staff, it may
be reflected in the report and analysis. Rudeness to Board staff alerts the
investigator that there may be deeper issues involved. A physician’s behavior
during the investigation can be a factor when determining an appropriate
sanction.
Be factual. When you provide information to the Board, either in writing or orally,
provide only the facts you know through personal observation. If you have
learned something by reviewing a document, state what document it is. Do not
speculate or guess, and do not provide information that someone else told you.
Simply state that an individual may have additional information.
Be clinical. A physician should provide information to the Board as if drafting
medical records or presenting a journal article. If there is a complex medical
issue, it should be addressed accordingly, without trying to “dumb” things down.
The investigators are medical professionals in their own right. Moreover, medical
issues are given to other physicians to review and inform the Board members.
The response should be highly clinical.
Do not lie or mislead. The worst possible thing you can do during the course of
an investigation is to get caught providing inaccurate information. Not only does it
insinuate that you committed the act that you are accused of, but the cover up
reflects on your professional character. If you lie, the next question the Board will
ask is: What else is the individual lying about? Does this physician lie to patients
or other health care professionals? Along those lines, be careful when
addressing a question from the Board. Try not to be sarcastic, engage in a battle
over semantics, or argue what the definition of “is” is. If a question is unclear, ask
for clarification.179
8.6 BON Complaint Investigation Process
Investigation of the complaint begins with assignment of the complaint to an investigator
in the BON’s Enforcement Department. It ends when the Board determines: 1) it has no
jurisdiction, 2) there was no violation of the NPA or insufficient evidence to prove a
violation, or 3) there was a violation of the NPA and the nurse signs an Agreed Order or
the Board files formal charges against the nurse. The BON’s flowchart of the entire
“Investigatory & Disciplinary Process” is included at the end of this chapter and is
available on the BON Website.180
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Within 30 days of receiving a complaint, Board staff must create a time line for
completion that does not exceed one year and notify all parties. Throughout the
process, any change in the time line must be noted and all parties are notified of the
change within seven days.181
Notification of the Nurse
In almost all cases, the nurse first learns of a BON investigation by mail. The Board
must send the notice by certified mail, return receipt requested, to the licensee’s address
on record with the Board. (Hence the vital importance of maintaining a current address
with the BON as described in section 1.2, page 7 of this APRN Guide.)
This notice contains a “statement of facts” that outlines the incident and alleged conduct
that violates the NPA or BON Rules and Regulations. The “charges” include the
allegations with specific citations that the behavior violates. The BON has the burden to
prove the allegations, but if proven, the notice states that the BON may take action
against the nurse’s license to practice professional nursing, including revocation. While
very few disciplinary actions involve revocation, the Board is legally obligated to inform
the nurse of the most serious consequence that could occur. All notices contain this
information, regardless of the seriousness of the alleged violation. The notice explains
the nurse’s rights and the action required of the nurse. The nurse is required to file a
written response within 20 days.182
However, if Board staff determines that notifying the nurse might jeopardize the
investigation, they have the option of initiating an onsite investigation without prior
notice. In that case, the first notice the nurse receives about the investigation is Board
investigators appearing at the office with a notice letter and subpoena in hand
demanding to view records. If the complaint was filed against the delegating physician, it
may be Texas Medical Board staff appearing.
In either case, fully cooperate, but be careful what you say. Read the subpoena and
preliminary notice carefully. If you do not understand what something means, ask the
investigators. Answer questions completely but as concisely, respectfully and factually
as possible. If you do not remember, you can say you do not remember and ask to
review the record in question. This is not the time to tell your life’s story, admit guilt or
bad mouth anyone else.
If, as is the case with almost all APRNs, you render excellent patient care, document
completely and accurately, and have your delegation protocol for prescriptive authority
and other medical acts signed and dated within the past year, then you can be confident
all will go well. You have a right to call an attorney. However, most APRNs do not have
an attorney on retainer and the attorney that drew your will is probably not equipped to
advise you about nursing board disciplinary actions.
In the most serious cases in which the Board determines the continued practice of the
nurse would be an imminent threat to public welfare, the BON may temporarily suspend
or restrict a nurse’s license without prior notice. However, the BON must simultaneously
request a hearing before the State Office of Administrative Hearings (SOAH).
SOAH must hold a probable cause hearing within 15 days of notice of the suspension.
This is required to be a de novo hearing in which substantive evidence is heard and
considered independently of the Board’s previous action to suspend. To continue the
temporary suspension, the administrative law judge must determine that probable cause
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exists that the nurse’s practice constitutes a continuing and imminent threat to the public.
A final hearing must occur within 61 days after the temporary suspension or restriction
was originally imposed.183
In this hearing, the Board is required to have developed,
and must produce, all evidence to prove that a violation occurred and the nurse
continues to be an imminent threat to the public.
The APRN’s Initial Response to the Complaint
For the nurse, the most critical point in the disciplinary process is initial response to the
first notice (preliminary notice as described in BON Rule 213.14). The nurse has 20 days
in which to respond to the notice. The clock starts ticking the day after the nurse
receives notice from the BON. Mark that date on the calendar as day 1. On day 20, your
response must be delivered to the Board. If the Board is closed on day 20, then the
response is due on the next business day.184 As stated previously, notices are always
sent by certified mail, return receipt requested, so the day the notice was delivered is in
on record at the Board.
This is probably the time to consult an attorney, particularly if you feel confused by the
information the BON sends. It is imperative that you read and understand all the
information and act on it appropriately. Even if you plan to admit to an unequivocal
infraction (e.g. practicing on a lapsed nursing license or failing to renew APRN
authorization and continuing to practice in the APRN role), you may need to consult an
attorney if there are mitigating circumstances that might explain your lapse.cviii Mitigating
circumstances do not absolve you of responsibility and the Board will still impose
sanctions. However, including that information can help assure the board this infraction
is an isolated incident. Also, the APRN must keep in mind that the final Board order will
include your statements of mitigating circumstances. Since Board Orders are public
records that anyone may access upon request, it is very wise to have mitigating factors
noted.
However, sometimes, what seems like a mitigating circumstance or defense to an
APRN is really not. For instance, if the APRN claims ignorance of the law or rules, then
that is not really a defense since the APRN is supposed to know and conform to all
rules that apply to his/her practice. In a sense, admitting to ignorance is admitting to a
violation. On the other hand, if you can honestly say that you exercised a reasonable
amount of due diligence in researching the Board’s position on an issue before
engaging in the conduct, then that is a defense that should be brought to the Board’s
attention.
With the exception of the complaint and any document that would reveal the identity of
the complainant and the investigator’s report, you have a right to have all information on
this case. Ask the investigator for this information immediately and periodically during
the course of any ongoing investigation. You will have to pay copying fees but that is a
very small price to pay.
As you write your response to each item in the complaint, do so in a factual, professional
and concise manor. If the allegation involves a patient, be sure to review the chart if you
can gain access to it. However, if you do so, make sure copies of all records the Board
cviii
Mitigating circumstances are conditions or happenings which do not excuse or justify the conduct but
are considered out of mercy or fairness in deciding the degree of the offense or influencing reduction of the
penalty upon conviction. LAW.COM Dictionary, last accessed on June 15, 2008 at
http://dictionary.law.com/default2.asp?selected=1267.
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requested have already been sent to the BON. It is also wise to have an impartial
person observe the entire time you review the chart. You want to avoid any allegations
that you altered the chart, and if such charges do arise, providing an impartial witness
that no alteration occurred would support your innocence.
Have at least one other professional read and edit the response for grammar, spelling
and tone. All communications with the BON should follow the advice given in Section 8.5
by TMLT. Your responses should be very truthful, complete and factual. It is very
important that the response not sound defensive, sarcastic or angry. If the allegation
involves providing substandard or non-efficacious care, ensure your response is
clinically accurate, using correct medical terminology. The APRN may submit current
journal articles or references that support the treatment plan, but be aware that anything
you submit may be used against you, as well as being used in your defense.
While your response should be very complete and truthful in addressing all the
allegations contained in the preliminary notice, it is equally important not to include
extraneous information. Be mindful that your response can be the basis for expanding
the investigation beyond the charges in the original complaint.
It is a very good idea to have an attorney who is familiar with representing clients before
the BON review your response. It will probably cost a few hundred dollars but may be
money very well spent. Adding facts or details later in the process makes it look like you
are changing your story. All future recitations of your side of the story will be based upon
your response to the preliminary notice. Now is your best opportunity to refute the
allegation/s and explain why your actions complied with the Nursing Practice Act. It is
also the best opportunity to explain any mitigating circumstances if admitting that a
charge is true. However, once again, an attorney is best equipped to help you determine
if a mitigating factor truly strengthens your case or could ultimately be used against you.
Occasionally attorneys urge the nurse to just deny all allegations (a general denial).
This advice is probably a red flag that this attorney is not the right one for you. APRNs
must remember that a general denial does not help the Board understand your side of
the story, and if other evidence seems to support the allegations, a general denial leaves
the board with no other option than to file formal charges. In other words, a general
denial results in loosing your best opportunity to get the case dismissed before the
Board files formal charges.
Failure to Respond
If the nurse fails to respond to the preliminary notice, the nurse eliminates the
opportunity to avoid formal disciplinary proceedings. Should the nurse also fail to
answer formal charges by the BON, the nurse defaults. This means the nurse, as the
respondent, is deemed to admit to all the allegations and waives the right to a hearing or
any other opportunity to demonstrate compliance with the NPA. Default also means
waiving the right to object to any sanction the BON imposes.185
Default is not the way to handle any alleged infraction. It shows you do not care and
may not be as responsive and accountable as an APRN should be, thus casting doubt
on your fitness to practice. If you did not receive the notice within the time frame the
board would reasonably anticipate, pick up the phone immediately upon reading the
notice and call the investigator and explain why you failed to respond in a timely fashion.
Even if you have already moved to another state, the board’s action will follow you any
where you practice nursing. Actions against your license will be sent to the national
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practitioner data banks (see the last chapter of the APRN Guide). Texas also enters all
of your Texas nurse licensing information in the NURsys® data system,
www.nursys.com.
Failing to maintain a current address with the BON may also result in a default. The
Board must make a reasonable attempt to notify the nurse. If the certified letter returns
maked, “address unknown” and there is no other address listed in the Board’s database,
the Board is deemed to have made a reasonable attempt. If all subsequent notification
attempts also fail, the nurse would default.
8.7 Informal Resolution/Settlement
It is possible to resolve the complaint informally before the case progresses to formal
charges. Informal proceedings are explained in BON Rule 213.20 and on the Board’s
website at http://www.bon.state.tx.us/disciplinaryaction/invproc.html. A case may be
settled informally when the respondent waives a hearing and signs an agreement with
the BON to pay a fine, and/or meet other stipulations such as completing specified
education or practicing under certain limitations.
Signing an Agreed Order
APRNs must be aware that signing any agreement that imposes a fine and/or stipulates
remediation (such as a requirement to have supervised practice) is a disciplinary action
against the APRN’s license, unless the notice or order states that the Board is taking
“corrective action” or the disciplinary action is being “deferred.” (See Section 8.11.)
Otherwise, this is a disciplinary action against the APRN’s license and the BON will
report this to the national practitioner data banks and the NURsys® data system. This
can have a negative impact on the APRN’s future employment, ability to be privileged in
hospitals or to be accepted on provider panels.
However, if the APRN committed the alleged violation and the disciplinary action
proposed in the agreement is consistent with the Board’s guidelines (see Section 8.10),
it is probably best to settle the case at this point. If unsure of the best course of action,
the best advice will come from an attorney who is familiar with BON disciplinary
proceedings and the facts of the APRN’s particular case.
A Board Order is always divided into the following parts.
1. The Preamble identifies the respondent, the date of the Informal Settlement
Conference (ISC) and the persons in attendance. It also states if the respondent
waived an ISC and representation by an attorney.
2. Findings of Fact recite the facts surrounding the allegation/s and include proof of
violations but also may include mitigating circumstances and a statement by the
nurse. The nurse may request that a particular statement or fact be included in the
Findings of Fact.
3. Conclusions of Law cite the sections of the NPA or specific BON rules the nurse
violated.
4. The Order names the disciplinary sanction and stipulates the penalties and
requirements the nurse must meet to reinstate an unencumbered, unrestricted
license. This portion of the order may also reflect negotiation with Board staff to
reduce a fine or requirement.
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5. Respondent’s Certification states the nurse understands his/her rights, agrees with
the Findings of Fact, is waiving a formal hearing, will fulfill the requirements in the
Order. It also cites the consequences if the nurse fails to meet those requirements.
This is followed by the respondent’s signature and date, which is notarized.
Signing an Agreed Order means the APRN is relinquishing any further rights of appeal.
While it is not impossible to set aside an agreed order and reopen the case, it is certainly
difficult and expensive to do so. If the APRN truly does not feel that the Agreed Order
reflects the true and complete facts or that the penalties are unfair according to the
Board’s guidelines, then the APRN should at least request and receive an Informal
Settlement Conference (ISC) before deciding to sign an Agreed Order. APRNs should
also understand that they can negotiate some of the wording in “Findings of Fact” and
the stipulations in the Order. A request for an ISC must be in writing and received by the
BON within 20 days of receiving the Board’s settlement offer.186
The Informal Settlement Conference (ISC)
The term, “informal,” to describe this type of hearing sometimes lulls APRNs into a false
sense of comfort that all their problems will be resolved when they can explain their side
of the story in person. This is not likely to be the case, and especially unlikely if the
nurse is not well prepared. While the Board is clearly obligated to assume the burden of
proving the APRN violated the NPA or Board rules, if the investigation to this point did
not lead to dismissal, obviously BON staff thinks a violation of the NPA probably
occurred. It is the APRN’s job, and that of his/her attorney, to demonstrate otherwise.
Nurses going to an informal conference should be as well prepared as they would for a
trial. They should be represented by a competent attorney and fully briefed on the
proceedings. Be sure to begin by reading the Board’s description of Informal Settlement.
The APRN attending an informal settlement conference must be well versed in the
provisions in the NPA or Board rules the APRN is alleged to have violated. The APRN
should also be familiar with any applicable Board position statements or guidelines that
exist. The APRN should carefully review the response he/she sent to the initial notice
from the Board, and have a working knowledge of the evidence sent to the Board
refuting the allegations and the evidence the Board is using to prove the allegations.
This conference is primarily a question and answer session, with most of the questions
coming from the Board staff and Board member, so the APRN must be well prepared to
respond to questions. Be prepared to discuss any mitigating circumstances. The APRN
also may choose to make an opening statement. If choosing to do so, that statement
should be prepared well in advance and reviewed by the APRN’s attorney.
In other words, an informal settlement conference feels very formal to a nurse who is
responding to allegations in a complaint. Nurses appearing at an informal conference
must maintain a professional, factual, clinical and truthful demeanor in person, just as
the nurse conveyed in the initial written response.
Being truthful is of paramount importance. If Board staff or members feel there is an
effort to deceive, then this reflects negatively on the APRN’s character and fitness to
practice. On the other hand, if the respondent seems competent, articulates an
understanding of how the NPA and Board rules apply to the APRN’s practice, and
readily accepts any suggestions to improve practice, it will have a positive impact.
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8.8 Formal Disciplinary/Settlement Process
Formal disciplinary proceedings begin if the complaint is not resolved informally and the
staff files “formal charges”.187 This portion of the disciplinary process ends when the
APRN agrees to the stipulations in a Board Order by signing the order or, if continuing to
contest the charges or proposed disciplinary action, the BON ratifies the proposal made
by the State Office of Administrative Hearings (SOAH) and all parties are notified.
Compliance with stipulations in the final Board Order is then monitored by an
investigator.
By the time Board staff files formal charges, the Enforcement Department has conducted
a thorough investigation, the APRN has been through an informal hearing and declined
to accept the Agreed Order with the penalties stipulated by the Board. Within 20 days of
receiving the formal charges by certified mail, the APRN must answer each allegation.
The formal charges contain a statement alleging the act or acts that violate a specific
statute, Board rule/s or Board order. Board staff may later amend the charges at any
time during the process. This means the staff may change, add, or eliminate any charge
alleged in the formal charges. If the nurse receives a notice amending the charges, the
nurse must also send a response to the amended charge.
The APRN’s Answer to Formal Charges
If the Board files formal charges or an amendment to formal charges, the nurse must file
a formal response to each. This response is called the “answer.” Rule 213.16(b)
describes the elements it must include.
(b) The answer shall admit or deny each of the allegations in the charges or
amendment thereof. If the respondent intends to deny only a part of an
allegation, the respondent shall specify so much of it is true and shall deny only
the remainder. The answer shall also include any other matter, whether of law or
fact, upon which respondent intends to rely for his or her defense.
Just as the Board staff has the right to amend formal charges, the respondent has the
right to amend his/her answer. However, just as in the response to the initial complaint,
it is always best to ensure that the initial answer to each charge, or any subsequent
amendment to the formal charges, is complete and accurate upon submission and the
tone is factual and non-defensive.
If the APRN has not already contacted an attorney, this is definitely the time to do so. If
the APRN already has an attorney, then make sure the attorney received a copy of the
formal charges and work with the attorney in answering the charges, and determining
the best course of action. At any time the APRN may change his/her mind and accept
the Agreed Order offered by the Board, even after sending a written request for a formal
hearing.
SOAH Hearing Procedures and Costs of the Formal Settlement Process
The formal hearing will be conducted before an administrative law judge at the State
Office of Administrative Hearings, also known as SOAH. Unlike the informal settlement
conference at the BON, this is a public hearing and follows specific procedure. The
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process is outlined in the Administrative Procedures Act, Chapter 2001, Government
Code, and set forth more specifically in SOAH rules.188 BON Rule 213.22 also includes
essential information. Prior to the public hearing, the BON Executive Director may call
the parties together to discuss discovery or other issues to expedite the process.
APRNs electing to go through the formal hearing are responsible for more costs,
including the Board’s costs of preparing the record to be reviewed by the administrative
law judge. If the administrative law judge upholds the Board’s final decision, the Board
can hold the APRN responsible for all the Board’s costs in presenting the case to SOAH.
The Board’s costs usually total at least $1,000 a day for each day of the hearing.
Therefore, it is important that the APRN is reasonably sure he/she has a strong case.
However, every APRN trying to decide if the cost is too high should remember that this
is their career and their nursing license. If the APRN has reasonable grounds to think
the Board has the facts wrong or has unfairly applied the facts, then the APRN should
request the SOAH hearing.
Administrative law judges at SOAH have found in favor of nurses in the past, but that is
not a predictor of any given case in the future. After statutory changes were
implemented in 2007, the Board developed new guidelines that may strengthen its
position at SOAH in the future. The APRN also needs to be aware that there are
grounds upon which the Board may change or even vacate the settlement proposal
(proposal for decision) issued by the administrative law judge. This could only occur if
the Board finds that one of the following circumstances exists: 1) the judge did not
properly apply applicable law, rules or policies; 2) the judge relied on a prior
administrative decision that was incorrect; or 3) a technical error in a finding of fact
should be changed.189
§301.555, Occupations Code, provides an additional mechanism if the Board takes
adverse action against the nursing license and the APRN decides to appeal. The APRN
may file an appeal in the district state court in the county where the APRN resides or in
Travis County. The Board’s Order remains in effect until the district court enjoins or stays
the Board’s decision and the Board is notified of the district court’s action.190
Temporary License Suspension or Restriction
§301.455, Occupations Code, permits the BON to temporarily suspend or restrict a
nursing license if the nurse’s practice threatens public welfare. In this case the BON
simultaneously initiates the process for a SOAH hearing to show probable cause that the
nurse’s practice represents a continuing threat. Within 61 days of the temporary
suspension or restriction, SOAH holds a final hearing. These are the Priority 1 cases on
which the BON acts swiftly.
8.9 Nurse’s Rights & Other Disciplinary Process Rules
Nurses undergoing complaint investigation and the formal disciplinary process have
certain rights. It is important that the nurse thoroughly understands those rights and how
to exercise those rights.
According to the NPA, the following is a listing of the nurse’s rights. The nurse has the
right to:
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 Have any arrest and criminal conviction information applied fairly and consistently,
according to guidelines established by the Board;191
 Receive written notice that includes specific information, including each allegation
and rights to a hearing;
 Be represented by an attorney, even if that right was previously waived;
 Rebut each allegation or statement in the report and show compliance with the
Nursing Practice Act, in writing and/or through an informal meeting;192
 If the Board suspends or revokes the nursing license or proposes to do so, a hearing
before the State Office of Administrative Hearings (SOAH);
 Contest the charges and disciplinary action proposed by the Board until the case is
finally heard by an administrative law judge at SOAH and the Board notifies all parties
of the final decision;
 Agree to accept the disciplinary action proposed by the Board at any point in the
process;
 Upon written request, receive within 30 days all known exculpatory information, as
well as information the Board will offer into evidence; and193
 Appeal the Board’s final decision, including appeal to a district court.
The nurse’s rights and options in the disciplinary process are included in Chapter 213 of
the BON Rules and Regulations. In addition to important procedural rules already
referenced, the APRN may need to review some of the following rules to understand
certain aspects of procedural requirements.
 Rule 213.01 defines many terms used throughout Chapter 213, and the APRN
should refer to those definitions to have a more complete understanding of the rules.
 Rule 213.4 explains that a person may waive representation and represent
himself/herself. Changing an attorney of record requires a formal request.
 Rule 213.5 requires any person appearing in a contested case to file written
testimony at least 21 days prior to appearing. In a contested disciplinary case, the
APRN must appear.
 Rule 213.8 explains how to file documents.
 Rule 213.9 explains how time must be figured. It explains that the first day of any
time period is not included and the last day of the period is included unless falling on
a day when the Board or SOAH is closed. In that case, the end of a time period falls
on the next business day. It also provides that the Board’s executive director may, for
good cause, extend a time period.
 Rule 213.10 specifies the Board’s requirements in notifying the nurse, and that the
notice is considered to be served when the notice is sent by certified or registered
mail to the licensee’s address of record.
 Rule 213.11 specifies that nurses may file a motion for continuance (e.g. delay a
hearing date) in matters before the Board, but the Board only has to grant the
continuance for good case, some of which are specified in the rule.
 Rule 213.17 explains the process for discovery.
 Rule 213.18 explains the process for obtaining depositions.
 Rule 213.20 explains the Board’s power to subpoena witnesses and other evidence.
 Rule 213.31 cross-references citations in the Nursing Practice Act and other Board
rules that pertain to a nurse’s rights and options that may pertain to a particular case.
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8.10 Disciplinary Actions / Assessment of Fines & Other Costs
§301.453, Occupations Code, lists the sanctions the BON may impose on licensees who
violate the NPA or BON Rules and Regulations. The statute gives the BON authority to
impose one or more of the following disciplinary actions.

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
Deny an application for licensure or license renewal. (This would include denying an
application for authorization to practice as an APRN.)
Issue a warning
Issue a public reprimand
Limit or restrict the person’s license (This includes excluding certain aspects of
practice, requiring the practice to be monitored and/or requiring periodic review by
the BON.)
Suspend the RN license for a period not exceeding five years
Revoke the RN license or accept voluntary surrender of the license (This includes
establishing conditions that the nurse must meet before the BON will issue an
unrestricted license.)
Assess a fine
In addition to, or instead of, any of the above, the BON may also order the nurse to
complete one or more of the following activities.


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Submit to care, counseling or treatment by a designated health provider as a
condition of licensure
Participate in a prescribed counseling or educational program
Practice for a period of time under the direction of another nurse
Perform public service
In 2008, the BON revised Rule 213.33, Factors Considered for Imposition of
Penalties/Sanctions and/or Fines. Any APRN facing possible disciplinary action from the
Board should read this rule. The BON also developed a “Disciplinary Matrix” that guides
the Board in applying penalties consistently.194 The matrix also helps nurses undergoing
disciplinary actions anticipate what penalties might be assessed if the nurse admits to
the allegations. For APRNs who contemplate signing an agreed order, referring to the
Disciplinary Matrix will help the APRN understand if the penalties are fair. The matrix
also helps APRNs preparing an initial response or answering formal charges to know
what circumstances the Board might consider to be legitimate mitigating circumstances.
Levels of Disciplinary Action & Stipulations
The levels of disciplinary action the Board imposes fall into the following categories,
listed from the least serious to the most serious.
1. Remedial Education
2. Warning
3. Reprimand
4. Suspension
5. Revocation / Surrender
Any disciplinary action entails a warning or more severe disciplinary action will remain in
the nurse’s file indefinitely.
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Stipulations
In addition to the above disciplinary action taken against the nurse’s license, the Board
Order stipulates certain actions the nurse must take in order to restore the license to a
full and unrestricted status. At the lowest level infraction, the Board will impose a $250
fine and stipulate that the nurse must complete a jurisprudence course within one year. If
the Board issues a reprimand, then the stipulations are much more extensive.
Stipulations that accompany a warning usually include two or more remedial education
courses plus one year of monitored practice. The practice could also be restricted in
some fashion to certain employment settings and types of patients. Usually the
monitoring is of an indirect nature, but this will be specified in the order, along with the
frequency and nature of reporting to the Board. The nurse is subject to a fee that must
be paid to the BON by the fifth of each month for as long as the practice is monitored.195
A reprimand results in at least 2 years of monitored and restricted practice. Usually the
type of monitoring imposed, while not necessarily direct, will be of a closer nature than
that imposed under a warning.
Once an Order is approved by the Board, a copy of the Board Order is sent to the last
employer of record.196 If the nurse receives a warning or more severe sanction, the BON
requires the nurse to report the disciplinary action to the employer. The nurse must
report the fact that he/she is practicing under a Board Order and provide a copy of the
order to the employer. This requirement not only includes all present employers, but also
any prospective employers.
Any licensee practicing under a Board Order practices on a restricted license until all
stipulations are met. This means that any Interstate Compact Privilege is revoked for
that period of time. The disciplinary action is also noted in the license verification posted
on the BON’s Website. Therefore, it is certainly to the APRN’s advantage to show proof
of completing all Board stipulations as soon as possible.
Board Approved Courses
As stated above, even for the lowest level offenses, the BON imposes a requirement for
the nurse to complete a jurisprudence course. These courses must be acceptable to the
board. If an allegation involves inadequate documentation, physical assessment or
patient monitoring, the BON will also require other course or courses that might address
the underlying knowledge deficits. Courses in jurisprudence, ethics and documentation
are the most common courses the BON requires.
It is often advisable for APRNs to complete educational courses they anticipate the BON
will require prior to an agreed order being drafted. If the nurse shows she/he already
completed a Board-approved course prior to signing the Board Order, then the order will
reflect the fact that the nurse already completed the class. Taking this type of proactive
action can demonstrate that the APRN is working to eliminate any knowledge deficits
that may have contributed to the allegations. The Board lists courses it approves on its
Website at http://www.bon.state.tx.us/disciplinaryaction/stipscourses.html.
Fines (Administrative Penalties) and Other Financial Consequences
The BON has authority under the NPA to impose substantial fines up to $5,000 for each
violation.197 These fines are also known as administrative penalties. Fortunately, the
penalty amount delineated in the Board’s Schedule of Penalties is considerably less, but
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fines can be imposed for multiple violations. In addition the Board may impose other
penalties of a financial nature.
§301.501, Occupations Code, authorizes the Board to impose a penalty, and §301.502
outlines the criteria for imposing those fines. BON Rule 213.32 is the schedule of
administrative penalties and provides the maximum amount that the Board can require a
licensee to pay for particular offenses. However, it should be noted that subsection (3) of
the rule permits the Board to impose the penalty each day that a violation occurs.
Therefore the fines for any continuing violation could be substantial. In reviewing Board
Orders over the past 10 years, the largest fine imposed by the Board appeared to be
$3,500.
In addition to fines, §301.503, Occupations Code, permits the Board to require a nurse
to refund a consumer’s payment. Since APRNs are frequently reimbursed by consumers
for the health care services they provide, APRNs should be aware of this provision.
In addition to direct financial penalties if the nurse is found to have violated the NPA,
other penalties entail a financial burden for the nurse. For example, there will be a fee for
the educational courses required in the Board Order. As noted previously, monitoring by
the Board incurs a monthly fee, and it is possible that an APRN may have to pay a fee
for one or more years to another practitioner in order to find a person to supervise the
practice who is acceptable to the Board. Certainly the APRN would also incur the
expense for any psychological assessments, treatment and drug screening conducted
subsequent to the order. The Board’s expenses for going to trial at SOAH could also
become the APRN’s expense if the judge upholds the Board’s original decision.
Probation & Staying a Penalty
The Board may stay an order to suspend or revoke a license and instead impose a
probationary period.198 This means that the Board puts the penalty (suspension or
revocation) on hold and gives the nurse the opportunity to continue practicing nursing
while meeting all conditions of the Board Order. This gives the opportunity for the nurse
to evidence good professional character and fitness to continue practice. If the nurse
fails to complete all requirements imposed by the Board Order, then the original penalty
(suspension or revocation) would be imposed. The Board may also suspend the license
for a period of time and then impose a period of probation.
For instance the APRN’s license might be suspended, but the suspension is stayed
pending completion of all educational and monitored practice requirements specified in
the Board Order. If the nurse completes all the requirements as stipulated in the Board
Order, the APRN’s license may be returned to unrestricted status and never suspended.
If the nurse fails to meet all requirements in a specified time period, then the nurse will
face suspension of her/his license. Under Rule 213.24, the BON will serve the nurse
who is on probation (probationer) with written notice of allegations supporting rescission
of the probation.199 After the probationer has the opportunity to be heard, the BON may
set aside the order to stay the suspension, and the nurse’s license is suspended.
Voluntary Surrender of the Nursing License
Of course the most serious penalty the BON may impose is revoking the license to
practice nursing. The nurse also has the option to voluntarily surrender the nursing
license. If that happens, the Board may revoke the license without issuing formal
charges or holding a hearing.200 Even in cases of revocation or voluntary surrender, it is
possible for the nurse to regain a license to practice nursing (see section 8.12).
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Publication of Disciplinary Actions
Final orders of the Board are public information, and the NPA requires the Board to
disseminate the information as it sees fit, but at a minimum once every six months.
Currently, the names of nurses who have been disciplined in the previous three months
are published in the Board of Nursing Bulletin. In addition all disciplinary orders are now
posted online on the “Notice of Disciplinary Action” Webpage.201 This is also a good
resource to see what is normally included in a disciplinary order.
8.11 BON Options on Disciplinary Action
The Texas Legislature passed SB 1415 in 2009. The bill permits the Board two options
to disciplinary action when a nurse violates the Nursing Practice Act.202
Corrective Action
In cases in which the violation results in only a fine and/or remedial education, the Board
may identify this as a “corrective action” rather than a disciplinary action against the
APRN’s license. This is a huge distinction. SB 1415 specifies that corrective actions are
not subject the public disclosure and information can only be disclosed to persons
involved with the Board in the action against the nurse; a licensing or disciplinary board
in another jurisdiction; TPAPN, or, if identifying information is deleted, a person engaged
in research.
The BON Executive Director may determine if corrective action may be imposed and
notify the nurse by certified mail. The notice will include a brief summary of the alleged
violation, recommend corrective action, and give the nurse his/her options in responding
to the notice.
The nurse will be required to respond by the 20th day after receiving the notice. The
nurse has the option to accept, in writing, the executive director’s determination and
recommended corrective action or reject that determination. If the nurse rejects the offer
of corrective action, then the matter will go through the complaint process as previously
described.
The option of taking corrective action is going to be a big win win for the BON and for the
nurses licensed by the Board. This creates another method for Board staff to process
complaints and should allow the Board to resolve minor infractions of the NPA much
more quickly than in the past. It will free the Enforcement Division to handle cases that
involve practice, and allow the Executive Director to handle administrative violations
such as failure to renew the prescriptive authority number. However, the BON will
maintain the right to consider the imposition of corrective action as a violation in
determining discipline to be imposed if the nurse subsequently commits a violation.
There will be a huge benefit for nurses who commit minor violations to accept the
corrective action. Acceptance is not an admission of a violation and is the same as
pleading nolo contendere to traffic citation. If the nurse pays the fine and completes the
remedial education courses in the prescribed time frame, then the corrective action will
not be subject to public disclosure and will not be reported to the national practitioner
data banks or NURsys® data system.
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SB 1415 requires the Board to include guidelines in its rules regarding the types of
violations for which a corrective action may be imposed. These rules should be adopted
in 2010. However, there is good news for APRNs who have action pending against them
for this type of offense. SB 1415 permits the Board to apply corrective actions for
pending cases, as well as those that occur on or after September 1, 2009.
Deferred Disciplinary Action Pilot Program
SB 1415 allows the Board to defer final disciplinary action against a nurse as part of a
pilot program. If the BON determines it is feasible to establish this pilot program based
on its effect on public protection, then the Board will operate the pilot program from to
February 1, 2010 to January 1, 2014.
The Board will have the option of deferring disciplinary action in cases that do not
involve reprimand, denial, suspension or revocation of the RN or APRN license. In other
cases, the Board could impose certain conditions on the licensee and, as long as the
nurse met those conditions, the Board could defer final disciplinary action. This means
that if the person meets the conditions stipulated by the Board, the Board would have
the option of dismissing the complaint.
The deferred disciplinary action is not confidential and would be subject to public
disclosure during the time the nurse is under the Board Order. However, if the person
meets the conditions imposed by the Board and the Board dismisses the complaint, the
deferred disciplinary action would not be subject to public disclosure from that point
forward. As in the case of corrective action, the Board may treat a deferred disciplinary
action as a prior disciplinary action against the nurse when considering imposition of
sanctions for any subsequent violations of the Nursing Practice Act or Board Rule.
8.12 Affect of APRN Licensure on the Disciplinary Process
In the August 8, 2008, issue of the Texas Register, the Board of Nursing proposed rules
that will change APRN authorization to APRN licensure. If adopted, the new rules will
not only change the umbrella term used to refer to the four advanced practice nursing
roles to Advanced Practice Registered Nurse, APRNs will then receive an APRN license
in addition to the RN license.
This second license will make it possible for the BON to take action against an APRN
license but leave the RN license unencumbered and unrestricted. This might happen if
the APRN’s violation only involved the APRN portion of the practice. Of course, the BON
would still have authority to take action against both the RN and APRN licenses if the
infraction also casts doubt on the ability to safely practice professional nursing, but the
BON would not be forced to do so as it is now. This will be an improvement for APRNs.
Right now, the Board does not have an option and disciplinary actions that should only
impact the APRN authorization always result in action again the RN license.
8.13 Board’s Authority to Require Certain Evaluations
In 2009, SECTION 10 of HB 3961 added §301.4521 to the Occupations Code (Nursing
Practice Act). The new section allows the Board to require an evaluation to determine
fitness to practice if probable cause exits that the nurse has a physical or mental
impairment, chemical dependency, or abuse of drugs or alcohol. The evaluation is
conducted at the nurse’s expense. The Board’s authority to require the evaluations not
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only applies to nurses whose continued competency to practice is in question, but also
to new applicants for licensure or nursing students that request a declaratory order
regarding their eligibility to be licensed in Texas.
The Board’s demand for the evaluation must be in writing and state the reasons
probable cause exists to require the evaluation. The demand letter must also inform the
nurse of the consequences of refusal.
If the nurse or applicant refuses to submit to an evaluation requested by the Board, the
Board schedules a SOAH hearing to finally determine if there is probable cause and
notifies the nurse by personal service or certified mail. The Board may refuse to issue or
renew the nurse’s license, suspend the license or limit the RN and / or APN license if a
nurse refuses to submit to an evaluation after SOAH rules probable cause exists.
The Board may request an evaluation of a nurse for any additional reasons it deems
appropriate when the nurse’s or applicant’s fitness to practice nursing is in question. In
these cases, the Board’s written notification must include all of the following information.
 Reasons for the request
 The type of evaluation requested
 How the Board may use the evaluation
 The right to refuse to submit to the evauation
 The procedure for submitting an evaluation as evidene in any hearing regarding
the issuance or renewal of the nurse’s or applicant’s license
If the nurse refuses to consent to the evaluation, the individual is prohibited from
introducing any independent evaluation evidence at SOAH unless the nurse meets all
the following conditions.
 At least 30 days prior to the hearing, notifies the board that an evaluation will be
introduced into evidence at the hearing
 Provides the Board the results of the evaluation
 Informs the Board of any other evaluations by any other practitioners
 Consents to an evaluation by a practitioner that meets board standards
The Board is required to adopt rules to establish qualifications for licensed practitioners
to conduct various types of evaluations. The rules will also establish guidelines for
requiring or requesting that a nurse submit to an evaluation. The results of evaluations
required by the Board are confidential. The result are not subject to disclosure by
subpoena or any other legal means except as evidence in a proceeding before the
Board or SOAH and as conclusion of law in a final Board Order.
8.14 Intemperate Use & Peer Assistance / TPAPN
§301.410, Occupations Code, delineates requirements for nurses to self-report or report
another nurse who is impaired by chemical dependency, mental illness or diminished
mental capacity. The statutory language presents the option of reporting the nurse under
Chapter 467, Health & Safety Code, if the nurse being reported has not committed a
practice violation.
Chapter 467 is the statute on Peer Assistance Programs.203 The approved peer
assistance program for Texas nurses is the Texas Peer Assistance Program for Nurses
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(TPAPN).cix This program is operated by the Texas Nurses Association, but is largely
supported through nursing licensure fees.
Reporting to the BON/ Peer Review or Referring to TPAPN
“Intemperate use” is defined in the Nursing Practice Act as “practicing nursing or being
on duty or on call while under the influence of alcohol or drugs.”204 Any nurse engaging
in intemperate use is violating the NPA and must be reported to the BON. If working in a
facility that has a peer review committee, the nurse may report to the peer review
committee, rather than to the BON.
If unsure a referral to TPAPN is appropriate, contact TPAPRN for a consultation at 1800-288-5528. The local Austin number is 1-512-467-7027. That is the same number to
call to report a nurse to TPAPN. The referral form that must be submitted for all nurses
referred to TPAPN is available on TPAPN’s website.205 Anonymous referrals are not
accepted but all information is confidential.
Self referral is always the best way to enter the program and ensures the best
opportunity for confidentiality. A nurse who truly self-refers (is not also referred to
TPAPN, or reported to a peer review committee or the BON by another person) would
not come to the attention of the BON unless their practice became an issue and others
and/or TPAPN reported that, as required by law. TPAPN would report any individual to
the BON who fails to complete or is dismissed from the program. However, TPAPN does
not report self-referred nurses to the BON for an isolated incidence of non-compliance.cx
TPAPN and Its Relationship with the BON
TPAPN is a wonderful program that saves the career, and life, of many nurses.
Participation in good standing in TPAPN means the APRN may answer “no” to the sworn
statement on the Board’s license renewal form attesting the nurse has not within the
past five years:
1) become addicted to or treated for the use of alcohol or any other drug; or
2) been diagnosed with, treated or hospitalized for schizophrenia and /or other psychotic
disorder, bi-polar disorder, paranoid personality disorder, antisocial personality disorder
or borderline personality disorder.
Not all APRNs with a psychiatric diagnosis have TPAPN as an option. TPAPN only
admits nurses with certain psychiatric diagnoses, including major depression, bipolar
disorder, schizophrenia, anxiety disorders or schizoaffective disorder.
In addition to self-referral and referrals from others, nurses often enter TPAPN as a
result of a Board Order. The BON often stays license suspension for nurses who enter
TPAPRN and remain in compliance with program requirements. The Board establishes
successful completion of TPAPN as a condition for reinstating the nurse’s unrestricted
license.
BON Rule 213.29 requires any nurse alleged to have engaged in intemperate use or
abuse of drugs or alcohol undergo a chemical dependency evaluation performed by a
professional approved by the executive director. The rule further states that nurses
addicted to alcohol or drugs and/or being treated for chemical dependency are not
cix
TPAPRN Website was last accessed on August 17, 2008, at
http://www.texasnurses.org/displaycommon.cfm?an=1&subarticlenbr=107.
cx
M. Van Doren (personal communication, September 5, 2008)
273
eligible to retain a license to practice nursing until the person can demonstrate sobriety
and abstinence for twelve consecutive months, or establishes eligibility to participate in
TPAPN. The nursing license will remain encumbered until the nurse attains five years of
sobriety and abstinence or until completion of TPAPN. An APRN must remain in TPAPN
for a minimum of three years.
The TPAPN Participant Handbook states that prior participants in TPAPN may not be
eligible for TPAPRN.206 Therefore nurses cannot count on more than one opportunity to
participate in TPAPN. However, according the Michael Van Doren, TPAPN Program
Director, it is possible for nurses to participate in TPAPN twice.
Nurses may be offered two full participations in TPAPN. A nurse may begin
participation and ultimately have to renew, i.e., re-start participation, should
she/he have an exacerbation or relapse. The nurse may complete the program
(or even possibly be dismissed for noncompliance) and later may still be eligible
for another participation with the possibility of a renewal (re-start) during her/his
second participation. Second opportunities, like the first ones, are not automatic
with TPAPN and will depend upon nursing practice/patient care issues, legal
issues and the like. Typically nurses who are third-party referrals without major
practice issues and without any legal charges or convictions in the intervening
time period will be most eligible to participate again, as would self-referrals. Once
a nurse has had board action, with or without TPAPRN participation as a
requirement, additional opportunities with TPAPN are less likely.cxi
Also, nurses should know that dismissal or withdrawal from TPAPRN will trigger further
disciplinary action by the board. This inevitably means that probation will be revoked and
the nursing license suspended or revoked.
As the BON-approved peer assistance program for Texas nurses, the BON and
TPAPRN must cooperate. The BON has guidelines to define the relationship between
the agency and TPAPN. TPAPN submits written reports to the BON quarterly and
reports the aggregate number of APRNs participating in the program separately from
other RNs.
Texas nurses and the public at large need to know that the new law passed in 2007 that
requires reporting nurses identified with a chemical dependency to the BON if they
possibly committed a practice violation has not negatively impacted the nurse’s
opportunity to participate in TPAPN. The Board created a streamlined process in which
the BON usually grants approval for the nurse to enter TPAPRN within a week. Over
95% of the referrals received by TPAPN are typically allowed to participate in TPAPRN
without anything greater happening than the meeting to review the referral
documentation with the BON.cxii
Once they enter the program, nurses participating in TPAPN based on a third party
referral have confidentiality similar to nurses who self-refer. The major difference is that
TPAPN only reports a self-referral nurse to the BON if she/he is dismissed or fails to
complete. Nurses reported by a third party are also reported to the BON for
noncompliance. Noncompliance can occur when a program participant fails to meet any
of the conditions set forth in the agreement that each participant signs. For instance, a
participant may be noncompliant due to having a positive drug test for an unauthorized
cxi
cxii
M. Van Doren (personal communication, September 5, 2008)
M. Van Doren (personal communication, September 5, 2008)
274
substance. However, when noncompliance is reported the BON, the nurse usually still
has a one-time opportunity to renew their participation in TPAPN. If the nurse expresses
willingness to continue participation, TPAPN asks the Board’s permission for continued
monitoring and the BON usually grants that request.cxiii
Any APRN that contemplates entering TPAPN should read the Participant Handbook. It
includes information on eligibility, terms of participation, and restrictions that will be
placed on your practice while in the program. It also includes the conditions that will
trigger TPAPN to report a nurse to the BON. Any nurse entering the program needs to
be fully aware that non-compliance, withdrawal or dismissal from TPAPN will trigger a
report to the BON. TPAPN requires complete abstinence from alcohol and nonprescription drugs, and abstinence is monitored through drug screening.
Obviously, entering TPAPN is a serious, long-term obligation, and should never be
entered just as an expedient way to settle an allegation of chemical dependency.
Chemical dependency disciplinary issues are difficult, and the Board can be counted on
to act conservatively to fulfill its obligation to protect the public. Since chemical
dependency, by its very nature, is a condition of denial, it is understandable that the
Board often rejects a respondent’s denial of chemical dependency even when there is
evidence that is not the case. The Board has been known to take action against nurses,
even when the forensic chemical dependency evaluation did not support the diagnosis of
chemical dependency. Any nurse caught in this quagmire, and all APRNs wishing to
prevent this situation, should read Carolyn Buppert’s article, “How a Seemingly
Innocuous Act Can Lead to Loss of License.”207
8.15 Reinstating Nursing and APRN Licenses
Most Board Orders contain language that provide for automatic reinstatement of an
unrestricted and unencumbered RN license when the Board receives proof that the
APRN successfully completes all stipulations. Upon receipt of the information, the APRN
can expect to receive a letter from the Board confirming receipt of proof of complying
and stating that the APRN’s nursing license is now unencumbered and unrestricted.
However, if the BON revokes the nursing license, then the nurse must petition the Board
to reinstate the RN license. This is also the case if the nurse voluntarily surrendered the
license. BON Rule 213.3(b)(2) states that an individual seeking reinstatement of a
surrendered, revoked or suspended license must petition the board on a form prescribed
by the Board. Therefore, in a few cases the nurse may also have to petition the Board if
the license was suspended, but usually, that is not the case. The Board usually lifts the
suspension based on the nurse completing the stiulations in the Board Order.
Unlike the original disciplinary process in which the BON had the burden to prove the
nurse violated the NPA or Board Rules, now the individual petitioning the Board for
reinstatement bears the burden. The nurse must initiate the petition for reinstatement
and prove fitness to practice. This is going to be another case in which representation by
an attorney will probably be necessary.
The BON has authority to deny an applicant’s petition to reinstate the license. If the
Board denies the petition for reinstatement, the petitioner has the right to request a
hearing before SOAH.
cxiii
M. Van Doren. (personal communication, September 5, 2008)
275
If the Board denies the petition, the Board may set a reasonable time before the Board
will consider another petition to reissue the nursing license. The Board also has the
option to issue a restricted license (the practice is restricted to certain types of settings
or patients) or impose conditions that the petitioner must satisfy before reissuing an
unencumbered RN license.
If the Board reinstates the RN license then nurses who were previously APRNs may
have the option of renewing the APRN authorization. The APRN will have to apply to
renew the APRN authorization. The APRN will have to submit proof of completing the
required CE. Depending on the length of time since the APRN last worked in the APRN
role, she/he may also have to complete 400 hours of supervised APRN practice.
276
Chapter 9
Liability, Tort Reform, Malpractice
Insurance, and Liability Insurance
Key Points
 Most medical liability claims fall under a type of tort.
 Tort claims must include four basic elements: duty, breach of duty, causal
relationship, and injury.
 Medical malpractice is a result of a deviation from the standard of care by a
professional, e.g. physician, nurse, dentist, etc.
 All advanced practice registered nurses MUST know and understand the Nursing
Practice Act in their state.
 Common claims made against APRNs include: providing services beyond the
APRN’s scope of practice, inadequately performing an exam or history, failure to
develop and follow protocol, failure to consult with the supervising physician, or improper
medication monitoring or ordering.
 The passage of the Medical Malpractice and Tort Reform Act of 2003 allowed for a
balanced Texas civil justice system and reduction in the number and costs of litigation.
 The statute of limitations for minors over 12 years and adults is 2 years. Minors 12
and under have until the child’s fourteenth birthday to file a claim or up to a maximum of
10 years after the date of the act or omission.
 The 2003 tort reform placed a $250,000 cap on non-economic damages for
healthcare practitioners without any requirement to qualify.
 The primary types of professional liability insurance coverage are occurrence and
claims-made.
 Understanding the essentials of caring, communicating, competency, and charting
can reduce liability risks.
 Even though every attempt is made to reduce the risk of liability, one cannot prevent
a patient or family from filing a claim for malpractice.
Introduction
In the last few years, medical liability has been an issue of much debate among
legislators, healthcare practitioners, attorneys, and consumers. Many believe tort
problems necessitate a need for reform due to high malpractice premiums resulting from
skyrocketing monetary awards, unpredictability of claims, and decreasing returns on
insurance investments.208 The U.S House Joint Economic Committee in 2005 identified
two goals for liability claims: 1) deter and punish negligent healthcare practitioners, and
2) compensate patients for injuries resulting from negligent care.209 The committee
concluded that the medical liability system is inefficient and ineffective since negligent
practitioners are not being sued, and those practitioners sued are most often not
negligent. In the report, the committee revealed for every one negligent practitioner there
are four others sued without cause. Other issues involve the high cost of maintaining
277
liability insurance and the cost required to defend claims, even if the claim is unjust.
Liability premiums have doubled over the last ten years.210 Defending costs in the legal
system remain high even if the case was dropped or dismissed. The average cost for
defense in a dropped case is $17,000.00 211
The purpose of this chapter is to provide general information only and should not
be used as a legal guide or substitute for legal advice. The authors are not
attorneys and recommend APRNs consult with legal specialists for specific advice
and recommendations. This chapter will provide general definitions of the laws
governing torts, summarize the judicial process for defending claims, describe the
options for liability insurance, and recommend ways to reduce liability risks.
9.1 Laws Governing Torts
Most medical liability claims fall under a type of tort, a civil wrong committed against a
person or property. Guido describes torts as either wrongful acts or omission of
expected actions.cxiv Society has specific expectations for individuals living within its
boundaries. In other words, society expects individuals to follow the established set of
rules. Advanced practice registered nurses have their own set of rules to govern their
practice, e.g. standards of care. A wrongful act occurs when actions are outside societal
expectations or standards of care. For example, it would be considered a wrongful act if
an APRN carelessly prescribes a patient six times the recommended dose of a
medication. An omitted act is when an action is expected (based on the societal
expectations or standard of care), but was not performed. An example of an omitted act
would be a patient seen by an APRN for respiratory distress and the APRN failed to
properly evaluate and treat this condition, and the APRN’s failure resulted in the patient's
injury or death.
Roche identified four basic elements for any tort liability claim.
1. Duty. There must be a duty owed by a defendant (the person whom a claim is made
against) to the plaintiff (the one filing a suit).
2. Breach of Duty. There must be a breach of duty by the defendant.
3. Proximate Cause. There must be a causal relationship between the breached act
and the injury sustained by the plaintiff. The cause can be 1) in fact or 2)
foreseeability. A detailed explanation of foreseeability is discussed later in this
section.212
4. Injury. The plaintiff must have sustained damage or injury from this occurrence.213
There are several different types of torts for which claims can be made. Of those, the
most common tort is negligence. Other types of torts that impact healthcare practitioners
include intentional and quasiintentional. (Guido)
Negligence and Malpractice
In Texas, negligence is defined as failure to use ordinary care that a reasonable, prudent
person with like background and similar circumstances would use. Many people use
malpractice and negligence synonymously, however individuals practicing in a
cxiv
Guido, G.W. (2006) Legal & Ethical Issues in Nursing (4th Ed). Pearson E., Inc.
278
professional field (physicians, nurses, attorneys, dentists, etc.) that fail to practice within
the standard of care, are generally referred to as having committed malpractice. (Guido)
Healthcare practitioners have established standards of care to guide their practice and
determine the minimum level of care for their profession. These guidelines ensure the
safety and protection of the public. As discussed several times in this APRN Guide, all
advanced practice registered nurses must know and understand the standards of
practice in the Board of Nursing Rule 217.11, and the standards of their professional
organizations. Failure to know the standards increases the risk of failing to meet the
standard of care.
Standard of Care
APRNs must use reasonable and ordinary skill and diligence in the health care they
provide. APRNs are held to the standard that would be practiced by a reasonably
prudent APRN in good standing who practices in the same role and specialty and in the
same geographic area.cxv Buppert (2004, p.449) suggests there is a direct link between
the standards of care and measuring quality of care. Did the practitioner provide the right
treatment, in the right timeframe, and provide the right teaching and instructions to the
patient and/or family? If the problem did not resolve as expected, was the patient
referred and followed appropriately for that problem? In a malpractice claim against an
APRN, the expert witnesses explain the standard of care, and the judge or jury
determines the standard that applies in this case and if the APRN met that standard.
(Buppert, p.237)
Elements of a Tort
According to Guido, the fundamental elements present in a tort, or negligence of a
healthcare practitioner have been further defined by the judicial system. They include the
following.
1. The injury is treatment related or caused by a deviation of a professional skill
2. Expert evidence is required to determine if the standard of care was breached
3. The act or omission involved assessment skills
4. There is a relationship established between the practitioner and patient, and duty of
care is within the scope of practice of the practitioner
5. The injury occurred as a result of seeking care from the practitioner
6. The act or omission was not intentional
There are occasional exceptions to the above elements; for example, if the wrong limb
was amputated or surgery performed on the wrong organ, no expert evidence would be
necessary to determine which limb or organ needed the surgery.
Duty owed to the patient
It is important to establish a duty owed to the patient in order for a claim to be
successful. This can sometimes be more complex than generally thought. The Texas
Medical Liability Trust states,“It is the relationship that establishes the [practitioner's]
legal duty to provide competent medical care. . . the existence of a [practitioner] - patient
cxv
Buppert, C. (2004) . Nurse Practitioner’s Business Practice and Legal Guide (2nd Ed). Jones and
Bartlett, Inc. pp. 237, 251.
279
relationship is a prerequisite for any medical malpractice claim."cxvi In other words, the
duty is created by the relationship itself rather than merely by the employment status of
the practitioner. This relationship is one that is generally accepted between the
practitioner and patient. The obvious relationship is one in which the patient calls a clinic
to make an appointment with a practitioner. Once the receptionist agrees to schedule an
appointment and the practitioner evaluates the patient, the relationship has been
initiated. The same occurs within the hospital setting. Once a practitioner is assigned,
accepts and evaluates a patient within a hospital, a relationship is initiated. The second
part of this equation involves "duty". Is there a reasonable obligation for the practitioner
to care or treat the patient?
The problem occurs when the duty owed is not clear. The following examples illustrate
how different situations may be construed as establishing a relationship with a patient.
 Office staff accepting referrals, scheduling patients, accepting walk-ins, and giving
advice over the phone
 HMOs listing a patient with a specific practitioner (read HMO contracts thoroughly)
 Practitioners contracted by an entity to provide a specific service, such as insurance
physicals and worker's compensation (Dakers 2000)
 Practitioners giving professional advice to friends, family or other practitioners.
Generally, once the practitioner-patient relationship has been established, a patient can
terminate the relationship at any time, but a practitioner must provide a patient with
reasonable notice and ensure there are other healthcare options open to the patient
prior to terminating that relationship. A "reasonable" time allowed for the patient to find
another practitioner will depend on the specialty, community size, and accessibility of
similar practitioners. In the meantime, the practitioner should be accessible for acute and
emergent situations. Mueller recommends practitioners send termination notices by
certified mail with returned receipt and document the notification process in the patient's
record.214
Advanced practice registered nurses are often unsure whether to notify patients when
they leave a clinic. There are currently no laws or rules that guide APRNs. Generally, in
this situation, patient notification by an APRN would depend upon various factors such
as the employment status of the APRN. If the APRN is in independent practice then
he/she must ensure that patients have access to care as noted in the above paragraph.
If the APRN is an employee of a company and shares patients with the physician or
another APRN, the APRN may not elect to notify patients of his/her departure. As a
matter of fact, there may be some risk in trying to notify patients as the physician
probably views all of the patients as the physician’s patients. Taking information from the
practice to notify patients of your departure without explicit written permission to do so
would be viewed as a HIPAA violation and unprofessional conduct by the Board of
Nursing.
A Breach of Duty
Leidig and Brockway define a breach of duty as any violation or omission of a legal or
moral duty. The neglect or failure to fulfill the duties owed to the patient in a just and
cxvi
Dakers, L. Establishing the physician-patient relationship. TMLT Reporter. July/August 2000.
Accessed: http://www.tmlt.org/publications/resources/.
280
proper manner may be found to be a breach of duty which can contribute to allegations
of improper performance.215
In most cases, an expert witness is hired to determine whether an act or omission was
within the scope of practice of the practitioner and if the practitioner deviated from the
established standard of care. In Texas, an expert report and a copy of the expert
witness's CV must be submitted to each party involved in the lawsuit within 120 days
after the filing date that the original petition included the defendant. Texas law requires
that "this report is written by a qualified medical expert and will provide a fair summary of
the expert's opinions as of the date of the report regarding applicable standards of care,
the manner in which the care rendered by the physician or health care practitioner failed
to meet the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed." A judge may grant one 30-day extension.
Texas allows for the expert APRN to determine if a standard of care was deviated, but
does not allow an APRN to determine a causal relationship between the act and the
injury. Only physicians are allowed to make inferences on causal relationships.
Prior to about three decades ago, physicians served as expert witnesses in all cases
involving nurses to determine whether the nurse deviated from the standard of care.
However this changed in the late 1970s. Since then, Texas laws allow licensed nurses
in the same field, certification, etc. as the defendant nurse to serve as an expert witness
and determine if a deviation from the standards of care occurred. The qualifications of an
expert witness are located in §74.402, Texas Civil Practice & Remedies Code. These
qualifications applied to a case against an APRN would include the following.
1) Educated in an accredited APRN program
2) Same APRN role and specialty as the defendant health care practitioner
3) Licensed, certified, or registered in the same field of study as the defendant health
care practitioner
4) Practice in the same type of environment, e.g. nursing home, family practice
outpatient clinic, etc. at the time the testimony was given or was practicing that type of
health care at the time the claim arose
5) Knowledgeable of the accepted standards of care for health care practitioners for the
diagnosis, care or treatment of the illness, injury, or condition involved in the claim
6) Qualified on the basis of training or experience to offer an expert opinion regarding
those accepted standards of health care.
Since so much weight is placed on the opinion of the expert witness, each party is
allowed to consult experts to review the case and make a report as to the conduct of the
defendant health care practitioner.
Foreseeable Events
Guido states, "foreseeability involves the concept that certain events may reasonably be
expected to cause specific results." One case study that clearly illustrates foreseeability
involves a pregnancy case from Texas Medical Liability Trust.
A 28-year-old, black female was referred early in her pregnancy to a perinatologist due
to chronic hypertension. A sonogram performed in the physician's office determined the
gestational age was 6-7 weeks.
281
The physician ordered a sickle cell screening test at the first visit, despite the patient's
assurance that both she and her husband were negative. Follow-up testing confirmed
sickle cell trait in the mother. The patient was 9-10 weeks at that time and was informed
of the importance of her husband being tested as well. This discussion was documented
in the patient's chart.
The husband presented to an outside lab for blood tests four months later when the
patient was 29-30 weeks of gestation. He was also positive for the sickle cell trait. The
patient was too advanced in the pregnancy to undergo a termination procedure.
The prenatal care by the perinatologist included performing weekly and bi-weekly nonstress tests. The patient was given pamphlets on sickle cell disease, birth control and
sterilization procedures. The husband did not attend any of the prenatal visits.
Risks and alternatives of contraception were explained and the patient stated that she
wanted a tubal ligation after the delivery. This was noted in the patient's chart. Proper
consents for the tubal ligation including the failure rate, and cesarean section were
signed by the patient.
The patient was admitted to the hospital near full term with dangerously high blood
pressure. Induction was attempted, but unsuccessful, and a cesarean section was
performed delivering an infant with apgars of 7 and 9. A tubal ligation was also done at
the time of the cesarean section. The infant was born with sickle cell disease. The
mother did well postoperatively.
Approximately 10 months later the patient presented again to the perinatologist with
complaints of severe abdominal pain and a late menstrual period. She was diagnosed
the next day with ectopic pregnancy.
The allegations included failure to:
 properly and timely test the patient's husband for the sickle cell trait;
 counsel the couple concerning the risks of a cesarean section and tubal ligation; and
 advise patient of her risks of becoming pregnant after tubal ligation.
In this case, the foreseeable events involved the testing of both parents for sickle cell to
determine the likelihood of the infant being born with sickle cell, and the possibility of
complications and adverse events that could arise from tubal ligation surgery.
Fortunately, the perinatologist documented the events and patient education thoroughly
in the chart and the plaintiff was not able to prevail. Guido (2006) reports that
medication errors and patient falls are identified as foreseeable events in many cases.
The cases of falls generally involve the use of side rails, restraints, and other planned
interventions to try to reduce risks.
Causation
The expert witness has the difficult job to prove that the negligent behavior of the
defendant’s health care practitioner caused the injury sustained by the plaintiff. The
cause can be direct, proximate, remote, supervening and superseding.216 The essence
of cause is the determination of link. Would the injury have occurred if it had not been for
the act or omission by the defendant? (Guido)
In the case of a patient with hypertension, an order was given to administer Procardia if
the blood pressure reached a specific level. The nurses took the blood pressure as
282
ordered, but failed to administer the medication on several occasions when the blood
pressure exceeded the upper limits defined in the order. The patient experienced a
stroke and sued the nursing staff. Although the nurses were negligent by failing to follow
the orders prescribed, that was not the cause of the patient's stroke and ultimate death.
The patient suffered from a thrombolytic stroke rather than from a hemorrhagic stroke.
This shows how important a causal relationship is to prove or disprove a claim. (Guido)
Proximate cause is commonly used to show link. This type of cause builds on
foreseeable events such as prescribing medication that causes drowsiness. When a
patient is given a medication that causes drowsiness, the practitioner must educate and
document that the patient was warned not to drive or operate heavy machinery after a
specific time the medication is taken. (Guido)
Injury
Injury can be physical, financial, or emotional. Lawsuits based solely on emotional injury
are generally discouraged. (Guido) When injury is determined to be caused by a
negligent health care provider, the goal is then to compensate the plaintiff for actual
harm suffered. This includes economic harm such as medical bills, lost wages, and noneconomic harm such as physical or mental pain and suffering, loss of the enjoyment of
life's pleasures, loss of companionship, embarrassment, and humiliation.217 There are no
caps for economic harm since values can be placed on actual past, present, and future
financial losses. Non-economic damages, however, are different. Since no true value
can be placed on non-economic losses, it's up to the jury or judge to determine what
financial value to place on this loss. In 2003, the Texas legislature passed H.B. 4 that
placed a $250,000 cap on non-economic payments to prevent exorbitant awards.
Common APRN Claims
In general, claims made against APRNs include the following.
1. Providing services beyond the APRNs scope of practice
2. Inadequately performing an exam or history
3. Failure to develop and follow protocol
4. Failure to consult with the supervising physician, which resulted in failure to diagnose
a condition or a delayed referral to a specialist or diagnostic study
5. Improper medication monitoring or orderingcxvii
Vicarious Liability
Vicarious liability holds one person responsible for the actions of another.cxviii Although
not a common occurrence, physicians supervising APRNs can be held liable for the
actions of the APRN. In general, the following three are most common reasons for
vicarious liability.
1. Inadequate supervision by the physician
2. Failure to establish standardized policies and procedures for the APRN
3. Over-delegation of duties by the supervising physician resulting in the APRN
practicing beyond his or her scope of practice (TMLT 2005).
cxvii
TMLT. (Jan/Feb 05). A Team Approach: Working with advanced Health practitioners. The Reporter.
Accessed: www.tmlt.org/publications/resources/Reporter/JanFeb05.pdf.
cxviii
Aidman, E.K. (2005) Winning Your Personal Injury Claim (3rd Ed).
283
In 1999, the following language was added to the Medical Practice Act to protect
physicians from the liable acts of physician assistants and advanced practice registered
nurses.
§157.060, Texas Occupations Code
Unless the physician has reason to believe the physician assistant or advanced
practice registered nurse lacked the competency to perform the act, a physician
is not liable for an act of a physician assistant or advance practice nurse solely
because the physician signed a standing medical order, a standing delegation
order, or another order or protocol authorizing the physician assistant or
advanced practice registered nurse to administer, provide, carry out or sign a
prescription drug order.218
Intentional Torts
Intentional torts include assault, battery, conversion of property, defamation, trespass to
land, false imprisonment, and intentional infliction of emotional distress. Table 9.1
includes a definition and example of each.
Table 9.1 Defining Intentional Torts
Tort
Definitions
Assault
An attempt or threat to
inflict bodily harm
Battery
Coversion
Trespass to Land
False Imprisionment
Intentional infliction of
emotional distress
Unlawful application of
force; the act of touching
Wrongful taking of property
without permission
“Unlawful interference with
another’s possession of
land”
Unlawful detention of
another person
Calculated actions that
cause mental distress
Example
Attempting to force
someone to take medicines
(injections, oral
medications, etc)
Holding a person down to
perform a procedure
Removing items from
luggage
Patients or families refusing
to leave the hospital
Forcing someone to stay at
the hospital
Forcing a new mother to
look at her grossly
abnormal fetus
Quasi-intentional Torts
Quasi-intentional torts have both unintentional and intentional components, but tend to
have more characteristics of negligent actions by the health care practitioner. Those
torts include invasion of property and defamation defined in Table 9.2. (Guido)
Table 9.2 Defining Quasi-intentional Torts
Tort
Invasion of property
Definition
An act or intrusion into
one’s personal property.
The act is one that most
people would find
unreasonable.
Example
Publishing facts and
pictures of a person in a
compromised situation in
the hospital. Giving status
reports to people
without permission.
284
Defamation
Injury to reputation in
public:
Written (libel)
Oral (slander)
Talking about a patient in
an area where the public
can hear. Disclosing by
written source patient
information to public.
To avoid such accusations of unintentional and intentional torts, APRNs must make sure
they have patient's sign consent and release of information forms.
Product Liability
Product liability involves products such as prosthetic devices or parts, medications, or
other items that are sold in the retail market. Laws have been created to protect the
public against defective or dangerous products by holding manufacturers, distributors,
and retailers responsible for those products safety.219
9.2 When a Claim Occurs
There are several phases that generally occur when a plaintiff files a claim against a
defendant health care practitioner. The phases include notification, pleadings and
pretrial motions, discovery of evidence, trial process, appeals, and execution of
judgment. This chapter briefly discusses each phase. Most medical claims are within the
state court's jurisdiction; however, medical malpractice cases involving veterans at a VA
facility are generally within the federal court's jurisdiction. Although federal cases usually
proceed in a similar manner, this chapter will review the laws that apply to medical
claims filed within Texas jurisdiction.
The claim must have occurred within the statute of limitations or the time each state sets
as a reasonable time for a claim to be filed. Table 9.3 outlines the statute of limitations
for various torts and Table 9.4 contrasts those with the statue of limitations for minors.
Table 9.3: Texas Statute of Limitations for Adults
Tort
Wrongful death
Personal Injury Actions
Medical Malpractice
Products Liability
Texas Statute of Limitations for Adults
2 years from the date of death
2 years from the date the injury occurred
2 years from the date the act first occurred
2 years from the time the plaintiff suffers the
injury
Table 9.4: Texas Statute of Limitation for Adults
Tort
Medical Malpractice wrongful death
All Other tests
Texas Statute of Limitations for Minors
Applies to minors 12 and under. The claim
must be filed by the 14th birthday. Also, the
claim must be filed within 10 years from the
date the act first occurred
The statute of limitation begins on the 18th
birthday
285
Medical malpractice and wrongful death statute of limitations are located in §74.251,
Texas Civil Practice & Remedies Code. All other statutes of limitations can be found in
Chapter 16, Texas Civil Practice & Remedies Code.
Notice
If an injury occurs and a claim is filed within the statute of limitations, Texas requires the
claimant to give notice (at least 60 days prior to filing a lawsuit) to the defendant that a
liability claim will be filed.cxix However, not all attorneys comply with this mandate. This
notification is to be sent by certified mail with return receipt requested. At this point, it is
highly recommended that the defendant consult with the insurance company and an
attorney immediately after receiving a notification.
Some insurance companies will appoint an attorney for the case. The lawsuit filed
contains names of those involved including plaintiff(s) and defendant(s), and the
allegations of breaches of standard of care and injuries. Generally the plaintiff(s) will
name everyone possibly involved due to the time constraints of statute of limitations. It's
easier to include those suspected of being involved rather than adding defendants at a
later time.
Pleading
The defendant(s) has “twenty days Monday next” to respond to the citation.(Quinllin,
personal communication) This means that the report is due the following Monday after
the 20th day of the petition. If a defendant does not respond by the deadline, a default
judgment can be imposed. This can result in the defendant losing the lawsuit. (Guido)
During the pleadings and pretrial phase, the defendant(s) will respond to the allegations
with a pleading, giving the defendant's version and facts of each event alleged. At this
point, the plaintiff may elect to dismiss the defendant from the case.
Discovery
The discovery phase is the most important phase of defending a case. Witnesses are
questioned at a deposition. Depositions are obtained under oath and allow both
attorneys to ask questions regarding events that occurred and materials collected to
clarify facts. Other actions include a thorough review of documents, an independent
medical examination of the plaintiff as necessary, and settlement discussion. In Texas,
all parties are entitled to receive unaltered documents within 45 days of a request.cxx
Trial
If a settlement is not an option, the case proceeds to trial. The judge will then determine
a trial date. The trial provides an environment to present evidence and apply the
principles of law to reach a verdict or decision. The process involves selecting a jury,
allowing each attorney to provide opening statements that summarize the evidence for
each party, and discussing the evidence through witnesses and medical experts. Once a
verdict has been issued, either party can ask for an appeal. This means that an
appellate court agrees to review the case and either uphold or reverse the civil trial court
decision. (Roche)
§74.051(a), Texas Civl Practic & Remedies Code. Notice.
§74.051 (d) Texas Civil Practice & Remedies Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.74.htm#74.051.
cxix
cxx
286
Verdicts will render a judgment for or against the defendant. If the jury decides there is
not enough evidence to prove the APRN at fault for the plaintiff's injury, the case will be
dismissed. If on the other hand, there was sufficient evidence to render a guilty verdict
against the APRN, money damages will generally be awarded to the plaintiff(s).
Economic damages are the estimated past, present, and future financial losses that
occurred as a result of the injury. Examples of economic losses include medical bills,
custodial care, lost wages, lost earning capacity, and other pecuniary loss or money
translated into economic loss.cxxi Noneconomic damages include physical pain, mental
anguish, disfigurement, physical impairment, loss of consortium (conjugal fellowship
between husband and wife), and loss of companionship.cxxii (Guido)
Although there is no limit on the amount of economic damages awarded, Texas tort
reform in 2003 under H.B. 4 capped the total non-economical damages awarded. A
malpractice non-economic award cannot exceed $250,000 for each claim that involves
physicians and other health care practitioners. Therefore, even if the claim involves
several physicians and practitioners, the total amount for all physician/practitioner
defendants cannot exceed $250,000.220 Hospitals and other health care institutions are
capped separately.
9.3 Malpractice and Tort Reform
In 2003, there was no doubt that Texas tort laws were in need of revisions. Skyrocketing
malpractice insurance rates were having a chilling effect on the number of physicians in
Texas. However, this was not the first time changes were recommended to lawmakers.
Background and Legislative Process
The Texas Tech Law Review article by Hull serves as the resource for this section and
much of the subsequent information on tort reform. cxxiii The first extensive research on
malpractice came about in 1975 from Dean Page Keeton and a commission of
interested parties appointed by the Governor, Lieutenant Governor and the Speaker of
the House. The group was known as the Texas Medical Professional Liability Study
Commission. The final report from this commission recommended several changes to
reform medical malpractice.
 Cap on non-economic damages
 Changes needed to the collateral source rule
 Changes to the statute of limitations on minors
 Other modifications to the law to protect access to health care
Only a few of the committee's recommendations passed during the 65th Legislature in
1977. Throughout the years, even those few recommendations were challenged in the
§41.001(4), Texas Civil Practice and Remedies Code. Economic Damages. Accessed:
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm#41.001.
cxxii
§41.001(12), Texas Civil Practice and Remedies Code. Noneconomic Damages. Accessed:
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm#41.001.
cxxiii
Hull, M.S. et al. Texas Tech Law Review (2005). House Bill 4 and Proposition 12: An Analysis with
Legislative History. Vol 36, Supplement.
cxxi
287
judicial system and resulted in further changes to the laws that did not alleviate the
malpractice problems.
In 1995, the Texas Legislature passed other reform measures. Article 4590(i), Vernon’s
Civil Statutes was amended to require a plaintiff to obtain a medical expert to review the
claim against the defendant. The plaintiff had 180 days after filing suit to provide an
expert report to all parties. To ensure that a report would be complete, the defendants
could require the plaintiff to post a bond if the expert report was not provided within 90
days to ensure that the 180 days would be met. At first, this measure decreased the
number of claims, but unfortunately, with time, this amendment was not enforced and
the number of claims increased.
During the Interim of 2002, Senator Jane Nelson chaired a committee charged with
assessing the causes for the rising costs of malpractice rates and to assess the impact
of malpractice lawsuits on access of care. After 3 days of hearing over 80 witnesses, the
committee concluded that a key cause of rising premiums was due to the high number of
lawsuits, noting not only the increase in number of claims, but the increase in severity of
awards. The committee's report and recommendations served as the foundation for the
2003 Legislative initiatives.
In January 2003, Governor Rick Perry declared malpractice reform as an emergency
issue. According to the Governor, he "attributed the malpractice insurance crisis to
growing numbers of frivolous and abusive lawsuits, and escalating damage awards,
settlements and legal expenses, all of which drain health care providers' financial
resources and time from treating patients." cxxiv He proposed a $250,000 cap on noneconomic damages and constitutional reform measures to protect the cap from judicial
challenges.
During the 2003, 78th Legislative Session, Chairman Joe Nixon, Chair of the House Civil
Practices Committee introduced a bill (House Bill 3) modeled after the California Medical
Injury Compensation Reform Act (MICRA) that called for medical malpractice reform.
Recommendations included the following.
 A cap of $250,000 for non-economic damages
 A statute of limitations for claims from minors
 Changes in collateral source rules
 Changes in periodic payments for future damages
 Limitations on plaintiff trial attorney contingency fees
In addition, Chairman Nixon introduced a second bill (House Bill 4) to reform medical
malpractice. After both bills went to the Civil Practices Committee, they were combined
into one, House Bill 4 (HB 4). Testimony was provided for and against the tort reform.
The Texas Medical Association provided the following data to support reform.
 Two-thirds (2/3) of counties in Texas had no OB/GYN
 The majority of Texas counties did not have pediatricians
 Almost one-third (1/3) of Texas did not have family physicians
cxxiv
Gov. Perry Designates Emergency Issues for 78th Texas Legislature (Jan. 24, 2003).
http://www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2003-01-24.0535
288

Hospitals and nursing homes faced excessive increases in malpractice premiums
and this inhibited their growth and access to the communities in need for health care.
 Institutions experienced coverage voids for specialty services and high-risk areas
such as obstetrics and emergency care.
The Texas Tech Law Review noted that physicians were either restricting their scope of
practice or moving out of the rural areas or out of state. The physicians in the Rio
Grande Valley region made a statement a few months prior by organizing a one-day
walkout. This intent was to bring attention to the need for medical malpractice reform.
Unsure about the predictability in Texas litigation, the number of medical malpractice
insurance companies dropped from nineteen to three over a three year period.
Practitioners were having difficulty paying the skyrocketing premiums of the insurance
carriers who remained in Texas causing practitioners to move or retire.
Other civil justice reforms were needed as well.
 Changes in the class action litigations
 More timely and reasonable settlement for claims
 Change in forum shopping
 Reduced liability exposure of manufacturers and providers of products
 Control on interest rates for judgments and appeal bonds
After numerous witnesses, debates, and amendments, House Bill 4 (The Medical
Malpractice and Tort Reform Act of 2003) passed the Senate and House. Governor
Perry signed the bill into law on June 11, 2003.221
After the passage of the Medical Malpractice and Tort Reform Act of 2003, there was
concern that it would be challenged and thus tied up in the legal system for years.
Therefore, Chairman Nixon introduced House Journal Resolution 3. This Amendment to
the Constitution would eliminate open court challenges to the proposed monetary cap on
non-economic damages. After obtaining the needed votes to pass through the House
and Senate, the amendment (also known as Proposition 12) went to the voters and was
approved in September 2003.
Texas Medical Malpractice and Tort Reform Act of 2003
Passage of the Medical Malpractice and Tort Reform Act of 2003 intended to "bring a
balance to the Texas civil justice system, reduce litigation costs, and address the role of
litigation in society." 222 The Act reforms class action lawsuits, offers of settlement, and a
number of liability issues. However, this manual only discusses the medical malpractice
and tort reforms that significantly impact advanced practice registered nurses.
Statute of Limitation for Minors
Section 74.251, Texas Civil Practice & Remedies Code provides more predictability of
claims, the reform changed the statutes on limitations of minors. There is a two-year
statute of limitations for general medical malpractice claims except for minors under
twelve years. Minors twelve and under have until the child's fourteenth birthday to file a
claim. A new ten-year statute was a reasonable closure to claims.
The Texas Medical Liability Trust (TMLT) reported that 90% of minor related claims were
reported within the first two to three years and 99% were reported within eight to nine
289
years.28 Another important reason to establish liability predictability is for practitioners
working with minors and ready for retirement. Previously, practitioners would have to
purchase tail coverage for malpractice for up to twenty years, however, now they have
some closure after retirement.
Expert Witness and Expert Reports
Sections 74.351-.352 and §§74.401-.403, Texas Civil Practice & Remedies Code
delineates the qualifications of an expert. The expert hired in the health care liability
case must be practicing in a similar field of practice at the time the claim occurred or
during testimony. The individual must have similar educational experience as the
defendant with an understanding of the standards of practice for the diagnosis, care or
treatment of the injury, illness, or condition for which the claim is being made.
There were also clarifications as to who can determine causation in health care liability
claims. The new provisions state that physicians are to determine causal relationships
except in certain podiatry and dental cases. In those cases, either a physician or dentist
or a physician or podiatrist could determine causal relations in a claim.
The timeline for an expert's reports was shortened from 180 days to 120 days after the
plaintiff filed claim. A curriculum vitae of the expert must accompany the report and the
defense team has 21 days to object to the credentials of the expert. (Hull)
Medical Liability Damage Limits and Caps
The new non-economic damage cap was divided into three tiers. The first tier, or primary
cap, for a health care practitioner is a straight $250,000 cap on non-economic damages
without any requirements to qualify.cxxv The second tier is applied if the first tier is
judicially challenged and found unconstitutional. Health care practitioners qualify for the
same non-economic damage cap except that it is linked to an insurability
requirement.cxxvi A third tier is linked to a "constitutional amendment that establishes
clear authority to the legislature to enact statutory caps on non-economic damages.”
(Hull)
Hospitals and other health care institutions also have a $250,000 non-economic cap
each or a maximum of $500,000 collectively regardless of the number of institutions for a
single claim or occurrence.Table 9.5 summarizes other reform measures included in HB
4 (Acts of the 78th Texas Legislature) and a related bill that impact APRNs.
Table 9.5 Summary of Other Selected Reform Measures.223
Name
Wrongful death and
survival cases
Exemplary and Other
Damage
Limitations
Brief Description
Punitive damage cap
Cap is for each case or occurrence
Cap is indexed for inflation (since
1977) Cap allows and applies to full
recovery.
Clarifies the definition of economic
and noneconomic damages
Punitive awards from jury verdicts
Statute
§ 74.303 (a)-(c) Texas
Civil Practice &
Remedies Code (Civil
Practice Code)
§41.001 (4) and (12),
Civil Practice Code
§74.301 Texas Civil Practice & Remedies Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.74.htm#74.301
cxxvi
§74.302 Texas Civil Practice & Remedies Code.
cxxv
290
must be unanimous Limits health
care expenses to those actually
incurred by the plaintiff Allows the
jury to consider plaintiff’s income
taxes when awarding future loss
income.
Established and defines future
damages.
§74.301, Civil Practice
Code
Res Ipsa Loquiturcxxvii
Prohibits the use of the commonlaw res ipsa loquitur in the health
care liability claims.
§ 74.201, Texas Civil
Practice & Remedies
Code
Emergency Care
The Good Samaritan Law is now
contained within the emergency
care section.
Clarifies definitions
Establishes provisions to limit noneconomic damages on claims
involving nonprofit hospitals
providing certain levels of care
§§ 74.151-054, Civil
Practice Code
Future Damages
Charitable
Organizations and
Charitable Immunity
Government
Employees or
volunteers:
The Texas Tort Claims
Act
Nursing Home
Provisions
Various Soverign Immunity Issues
Damage caps
HB 2292 repealed the mandatory
insurance requirement of
§242.0372, Texas Health and
Safety Code. Damage caps are the
same as those for any health care
institution.
§74.501, Civil Practice
Code
§ 311.0456, Texas
Health and Safety Code
§ 101.021, Civil Practice
Code
§ 101.106, Civil Practice
Code
§ 74.001(21) Civil
Practice Code
§74.301(b), Civil Practice
Code
9.4 Professional Liability Insurance
This section provides general information regarding professional liability
insurance and is not a substitute for the advice of an appropriate professional. It
is recommended that advanced practice registered nurses consult with an
insurance professional or legal counsel to assist with guidance and
recommendations.
Currently, there are several choices for nurse practitioners seeking professional liability
insurance. The three main insurance carriers for advanced practice registered nurses
seeking coverage independently from his/her employer are Chicago Insurance Company
(CIC), American International Group, Inc (AIG), and CNA. Although those names may
seem foreign, the brokers/agents for them may be familiar: Marsh Affinity, Nursing
Service Organization (NSO), and Cotterell, Mitchell, and Fifer (CM&F). Bill Beatty is a
Texas based broker/agent. There are other professional liability insurance companies
cxxvii
Wikipedia. Res Ipsa Loquitur. Accessed http://en.wikipedia.org/wiki/Res_ipsa_loquitur.
291
and brokers, but they generally require the collaborative physician to have the insurance
before accepting coverage for the APRN. An example is Texas Medical Liability Trust
(TMLT), the largest insurer of Texas physicians.
Individuals generally go through an agent or broker to obtain insurance coverage. The
basic difference between an agent and broker is that an agent sells insurance on behalf
of a specific insurance company and a broker researches insurance companies to find
the "best fit" for an individual. Although Texas does not require medical professionals to
carry professional liability insurance, the APRN must make the decision whether he/she
wants to have the individual protection if involved in a claim resulting in a monetary
settlement. Professional liability insurance generally covers the defense costs
associated with legal and licensure claims, along with any monetary settlements or
awards.
What type of coverage to purchase?
There are several types of coverage to choose including occurrence, claims-made and
tail coverage.

An occurrence policy covers an individual for occurrences during the time of
coverage regardless of when the claim arises.

A claims-made policy covers an individual only if the claim occurs and is made
during the time the individual has insurance coverage with that insurance company.
With claims-made policies, if a claim arises after your policy term ends, the claim will
not be covered unless you purchased tail coverage (or prior acts with a new
company).

Tail coverage is purchased from the existing company at the end of the policy to
allow for extended coverage of the claims-made period after the policy ends. Prior
acts coverage is purchased by a new insurance carrier for coverage of any claims
occurring before the policy period started.
How much coverage to purchase?
There is no answer to this question that fits all practices. Each APRN must consider a
variety of issues when determining the amount of liability insurance to purchase.
APRNs should consider having enough malpractice insurance so that noneconomic
damage caps would apply if the court applies the alternative requirements specified in
§74.302(d), Texas Civil Practices & Remedies Code. The highest amount of coverage
that might be required under that provision is $1 million for each health care liability
claim and $3 million in aggregate for all health care liability claims occurring in
one year.
The current caps on noneconomic and wrongful death damages that apply in Texas add
certainty to the issue of how much coverage is needed. Since enactment of tort reform in
2003, the number of law suits has reduced significantly and the Texas Medical Liability
Trust, the group that ensures the vast majority of Texas physicians, reduced liability
rates each year over the past few years. However, the damage caps in Texas is only
one factor the APRN should consider. There are no limits on the actual damages that
may be awarded.and other practice and business issues may influence the decision.
The following includes some other factors to consider.
The APRN:
292
1.
2.
3.
4.
5.
6.
practices in a state, either physically or through telephone or electronic means,
outside of Texas where Texas caps would not apply.
treats patients with a greater chance of suffering a lifetime of high cost medical
care should an error result in a devastating outcome. (These are economic
damages and not covered by caps.)
treats patients who have very high incomes and have families that rely on that
income.
contracts with health care provider networks or has privileges at a facility that
require a specific level of malpractice insurance coverage.
shares call or otherwise has responsibility to treat physician’s patients and those
physicians carry a low level of liability insurance.
has liability insurance through the employer that is adequate to meet financial
responsibility requirements and only needs enough insurance to have a separate
attorney representing their interests.
The first three factors may influence a decision to increase the amount of liability
insurance to purchase. The fourth factor takes the issue of determining minimum
coverage out of the APRN’s hands if the network is one that could bring a lot of patients
into your practice or the APRN needs to have privileges at the health care facility.
The last two factors may reduce the amount of liability insurance the APRN purchases.
In a situation in which the APRN has significantly more liability coverage than the
physicians with whom she/he works, the APRN may become the “deep pocket” and
could make it more likely plaintiff’s attorneys will involve the APRN as a defendant in a
lawsuit. Before automatically lowering coverage, the APRN should have a conversation
with the physicians about raising their coverage or, at a minimum, paying the cost of the
APRN’s higher coverage. Factor six would probably result in requiring a lower level of
coverage. However, don’t assume coverage limits in an employer’s liability policy is
adequate without knowing the facts.
Carriers differ on the limits of coverage and maximum amount paid on a claim. Policies
will generally provide coverage from $200,000 to $1,000,000 each claim up to $600,000
to $6,000,000 aggregate. Aggregate is the cumulative limit for all claims within the policy
period. Hospitals may require a minimum amount of coverage for privileging eligibility.
Table 9.6 Professional Liability Coverage for NPs and CNSs
Carrier
Agent/Broker
Type
Limits
(maximum)
CNA
NSO
Occurrence $1,000,000/$6,000,000
Chicago
Marsh Affinity
Insurance
Co.
Chicago
Bill Beatty
Insurance
Co.
AIG
CM&F
Contact
www.nso.com
Occurrence
$200,000/$600,000
www.proliability.com
Occurrence
$200,000/$600,000
www.bbitx.com/services.html
Claimsmade
$1,000,000/$6,000,000
www.cmfgroup.com
293
Table 9.7 Professional Liability Coverage for CRNAs
Carrier
Agent/Broker
CNA
AANA
Evanston
Shand
Morahan &
Company, Inc
Type
Claimsmade
Limits
(maximum)
$200,000/$600,000
www.aana.com
Individualized
www.shand.com
Table 9.8 Professional Liability Coverage for CNMs
Limits
Carrier
Agent/Broker
Type
(maximum)
AIGcxxviii
Contemporary
Claims$250,000/$750,000
Insurance
made
Contact
Contact
www.cisinsurance.com
An excellent resource for advanced practice registered nurses seeking more information
regarding malpractice is the Texas Department of Insurance, www.tdi.state.tx.us.
Kenneth McDaniel, [email protected], is the malpractice insurance expert for
the department.
9.5 Liability Prevention/Risk Management
This section focuses on reducing liability risks for competent and conscientious
healthcare practitioners. This section begins with a discussion of history in the twentieth
century to help APRNs understand the societal norms that influence litigation.
Historical Perspective
The United States has evolved from an industrialized nation to a technology-based
nation. In the early twentieth century, physicians were respected, rarely questioned and
people often left treatment decisions up to the physician's best judgment. With the era of
technology advancements, treatment options have expanded, access to treatments have
become readily available and people are more informed and expect to be involved in
care decisions.
With the introduction of insurance restructuring and HMOs, insurance companies
changed the way practitioners can provide health care and yet control overhead. Since
patients must choose from a list of health care practitioners, loyalty to practitioners is
rare. With patient's having to switch healthcare practitioners with each new job or
change in insurance plan, the newly established practitioners are not able to develop a
relationship long enough to solidify a practitioner-patient relationship based on trust and
comfort.
Health care professionals are evolving and patients find it difficult to understand all the
roles of each. Physicians, nurses, pharmacists and many other health care professions
must continue to explain their roles in relationship to the patient's care.
With advancements and changes in the healthcare industry, health care is more
depersonalized at the same time people demand more from health care.224 The book
"Wall of Silence" gives providers an insight from a patient's perspective, and how others
cxxviii
ACNM. Professional Liability Information. Accessed: http://www.acnm.org/professional_liability.cfm
294
view the health care system. The author describes healthcare organizations with
overworked staff, poor communication among people taking care of the same patient,
mistakes being made by individual providers, and budget pressures that force doctors,
nurses, and administrators to cut corners.225 In general, the needs and expectations
have changed and health care providers must re-establish the balance between health
care advancements and personalized care.
Julia Pallentino, MSN, JD, ARNP-BC developed the four C's of risk reduction.226
1. Caring
2. Communicating
3. Competency
4. Charting
Caring
Individuals want to feel as though they are under the care of a professional who is caring
and concerned about his/her patients. It's about a feeling of trust that the provider will
take the time to listen to the needs of patients, has the knowledge, and competence to
provide the appropriate care, and will assure that everything is done in a timely manner
including diagnostic tests, follow-ups, referrals, etc.
There are many factors that play a role in this process of caring. A clinic environment
represents the provider; therefore, the individuals answering the phones or greeting
people as they enter begin the process of a positive or negative relationship. This first
interaction is the most important because it sets the stage. Staff should make sure the
patient has his/her full attention by first acknowledging the patient with a smile. Other
factors influencing a patient's overall experience includes staff being busy, lots of
paperwork to complete, long waiting times, and a feeling of being rushed and not
listened to.
Mangels conducted a survey to determine a patient's perception of needs and
expectations. They concluded the following.cxxix
1. To be treated with courtesy and respect by all members of the health care team.
2. To be in a warm and compassionate atmosphere where they are comfortable asking
questions and discussing their concerns.
3. To have their fears, anxieties, and concerns listened to, taken seriously, and properly
addressed.
4. To maintain their privacy and dignity.
5. To be recognized as unique individuals with their own special characteristics, not
labeled or identified as stereotypes, diseases or numbers.
6. To be given information at their level of understanding and in a language that they
can comprehend.
7. To be well enough informed to take part in the decision-making process about their
treatment. To receive enough information (including diagnosis and treatment
options, risks, fees, etc) to be able to make informed decisions and to give informed
consents to proposed treatment.
cxxix
Mangels, L.S. (unknown year). The Predisposition to Sue.
295
8. To form a partnership with their provider that will allow them to participate in their
own recovery to the extent that their condition allows.
9. To receive absolute confidentiality.
Providers and staff should make eye contact when talking with patients and ensure that
the body language is consistent with the verbal communications. For example, a patient
may feel rushed when the provider is in the patient's room, standing next to a door with
one hand on the knob.
Follow-up phone calls by the provider are another way to show the patient that he/she is
concerned about that individual's health. It is not feasible for every patient visit to be
followed up with a phone call, but the patients who are acutely ill or have a lot of issues
will find a follow-up phone call very meaningful.
Mangels clearly concludes from her study, "Positive relationships lead to satisfied
patients and have the greatest potential for lowering malpractice claims. It's not the
severity of injury nor the degree of neglect …as indicators of whether a patient will sue
or not. It has become …evident that patients who have positive relationships with their
health care team are the least likely to sue when something goes wrong. They (the
patients) are more understanding and accepting of mistakes and complications, and feel
a shared responsibility for their care."
Communicating
The most important element for patient care is communication with the patient and
family, as well as members of the health care team. The first step to communication is
the art of listening. Stephen Covey says it best. “Seek First to Understand” and the best
way to do that is through empathetic listening. In the "Wall of Silence," a physician
describes a patient coming in with shortness of breath and how he determines the
diagnosis. He first thinks about viral pneumonia, with a small chance of a blood clot in
the lung. This changes when the patient reports just arriving from a long flight from
Europe. Now he is thinking a blood clot could be the more likely cause of the shortness
of breath. However, the urgency could change if the patient also reports having sickle
cell. There are three types of potential errors that could occur with communication: 1)
failing to ask the right questions and do the right tests to get the right answer, 2) failing to
diagnose in a timely manner, and 3) failing to give certain treatments pending
confirmation or elimination of a diagnosis.227
It is important that good communication patterns are established with patients and their
families. They need to understand the care, services and treatment modalities that are
and are not provided or available.228 Providers must use simple terms when explaining
medical diagnoses, treatments, and outcomes to patients and families. Diagrams and/or
written information will help the patient and families retain what was said once the
provider leaves. Another way to find out if the patient and families actually understand
instructions is to ask that they repeat instructions prior to leaving. This will allow time for
clarifications. When performing any types of procedures that could carry a risk of injury,
obtain informed consent. Document each interaction with patient and family.
Communication is vital between health care entities and providers: hospitals, nursing
homes, outpatient clinics, surgery centers, etc. Patient care documents should be
accessible for all providers while patients are under their care. When multiple providers
296
care for a patient, effective communication is important to prevent unnecessary
duplication of medication and testing, and avoid adverse effects of medications.
When something unfortunate happens, keep communication lines open. A wall of silence
may result in a family becoming outraged and angry at the provider and institution. The
author of "Wall of Silence" suggests that most patients and family that are victims of a
medical mistake want acknowledgment and an apology for resolution. It is
recommended that an attorney is consulted prior to talking with patients and families.
However, do not let an attorney bar an apology without considering the benefits. For
more information, see the article, “What If We Just Said, “I’m Sorry?” by Michael S.
Woods, MD, and the “Sorry Works” website,
www.sorryworks.net.
Competency
First and foremost, the APRN must know the laws and practice within his/her
competencies.
Rule 22 TAC §221.13(a)
The advanced practice nurse must know and conform to the Texas Nursing
Practice Act; current board rules, regulations, and standards of professional
nursing; and all federal, state, and local laws, rules, and regulations affecting the
advanced role and specialty area. When collaborating with other health care
providers, the advanced practice registered nurse shall be accountable for
knowledge of the statutes and rules relating to advanced practice nursing and
function within the boundaries of the appropriate advanced practice category.
Medical breakthroughs are occurring frequently and the best way to keep up-to-date with
these changes is through continuing education programs and journals. Educational
activities should be focused on the age specific specialty of the APRN. Keep a file with a
list of all courses and classes attended. In addition, when an APRN adds a new
procedure or patient care activity, the APRN should keep a portfolio of the educational
process used to acquire the knowledge and skill, and document ongoing competency.
Advanced practice registered nurses must know their limitations and refer to other health
care providers in a timely and appropriate fashion. Relationships with other health care
providers should be fostered to promote effective collaborative, consulting and referral
relationships. Patients requiring a higher level of service should be transferred
appropriately. Do not practice in unfamiliar territory!
Charting
Document! All RNs learned in the first nursing course, “If it's not documented, it's not
done.” Writing must be legible and thorough. Ensure that charts or records are
maintained and documents are located in their appropriate sections. Keep a log of all
phone and on-call interactions and keep call partners informed.
Pallentino recommends that APRNs be considerate when documenting and not include
offensive notes in the chart such as "The patient arrived to the clinic drunk and
disorderly." One would more appropriately document, "Patient arrived with a smell of
alcohol on her breath and was combative with staff."
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Quoting conversations with families and patients is an effective way to document
interactions. In the example above, an APRN may elect to expound on the interaction
with the patient by writing, “The patient walked in the clinic today stating, ‘I had too much
to drink last night. I still have a hang-over.’ Patient has a smell of alcohol on her breath
and is having difficulty staying focused on her concerns.”
Follow-up appointments are very important and must be scheduled. Reasonable
attempts must be made to have patient come in to be seen. When a patient comes in the
clinic to be seen, read through past visits to make sure past complaints have been
followed up and diagnostic workups have been completed.
DO NOT ALTER RECORDS. Alterations in documents can result in an assumption of
hiding facts and has resulted in many health care providers and insurances companies
having to agree to a settlement.
Pallentino reminds all APRNs that even though every attempt is made to reduce the risk
of liability, one cannot prevent a patient or family from filing a claim for malpractice.
Anyone can sue any person for any reason. However, careful attention to the four C’s
can minimize the APRN’s risk.
APRNs who want to learn more about reducing their risk of liability should refer to the
Texas Medical Liability Trust website. TMLT offers excellent publications and numerous
articles on practice standards and risk reduction strategies.cxxx APRNs must be aware
that the content is targeted at physicians and that APRNs do not share all the rights and
privileges of physicians (e.g. broad authority to delegate). However, in general, APRNs
would be required to meet the same or similar standards in rendering treatment and
maintaining a practice they own.
cxxx
TMLT. Frequently Asked Questions. Accessed http://www.tmlt.org/newsroom/faqs/index.html. Risk
Management Publications. Accessed http://www.tmlt.org/publications/riskpubs/. The Reporter articles.
Accessed http://www.tmlt.org/publications/resources/.
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Chapter 10
The National Practitioner Data Bank
and Health Care Integrity & Protection Data Bank
Key Points
 The National Practitioner Data Bank (NPDB) and Healthcare Integrity and Protection
Data Bank (HIPDB) are information clearinghouses created by Congress to improve
health care quality and reduce health care fraud
 The intent of the Health Care Quality Improvement Act of 1986 (HCQIA) is to
 improve the quality of health care by encouraging State licensing boards,
hospitals and other health care entities, and professional societies to identify and
discipline those who engage in unprofessional behavior; and

to restrict the ability of incompetent physicians, dentists, and other health care
practitioners to move from State to State without disclosure or discovery of their
previous medical malpractice and adverse action histories.
 The following actions are reportable to the NPDB
 Medical malpractice payments
 Licensure actions taken by boards
 Clinical privileges actions
 Professional society membership actions
 Medicare/Medicaid exclusions
 US Drug Enforcement Administration actions
 The following actions are reportable to the HIPDB
 Licensing and certification actions
 Health care related civil judgments
 Health care related criminal convictions
 Exclusions from Federal and State health care programs
 Other adjudicated actions or decisions
 Health care practitioners may self-query the NPDB and HIPDB.
Introduction
The National Practitioner Data Bank (NPDB) and Healthcare Integrity and Protection
Data Bank (HIPDB) are information clearinghouses created by the United States.
Congress to improve health care quality and reduce health care fraud and abuse in the
U.S. APRNs should have a basic understanding of these data banks since a malpractice
payment made on behalf of the APRN or any action against the APRN’s nursing license
will result in a report to one of these data banks. Of particular note is the information in
Section 10.3. This section explains confidentiality protections, and gives instructions to
self-query the the data banks and correct or dispute a report.
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10.1 The National Practitioner Data Bank (NPDB)
The NPDB was established by the Health Care Quality Improvement Act of 1986
(HCQIA), and later amended by P.L. 100-177. Final regulations governing the NPDB are
codified at 45 CFR Part 60. The NPDB opened for reporting and querying in September
1990.
The intent of HCQIA is to improve the quality of health care by encouraging state
licensing boards, hospitals and other health care entities, and professional societies to
identify and discipline those who engage in unprofessional behavior; and to restrict the
ability of incompetent physicians, dentists, and other health care practitioners to move
from State to State without disclosure or discovery of their previous medical malpractice
and adverse action histories. Adverse actions involve certain licensure, clinical
privileges, and professional society membership actions, as well as Medicare/Medicaid
exclusion and U.S. Drug Enforcement Administration actions.
NPDB Reports
Eligible health care entities are responsible for meeting specific reporting requirements.
They must register with the NPDB to report.
Who Should Report to NPDB?







Medical malpractice payers
Medical/dental State licensing boards
Hospitals
Other health care entities with formal peer review
Professional societies with formal peer review
HHS Office of Inspector General
U.S. Drug Enforcement Administration
What is Reportable to the NPDB?






Medical malpractice payments (all health care practitioners)
Adverse licensure actions (primarily physicians and dentists) based on reasons
related to professional competence and professional conduct.
Adverse clinical privileging actions (primarily physicians and dentists) based on
reasons related to professional competence and professional conduct.
Adverse professional society membership actions (primarily physician and dentists)
based on reasons related to professional competence and professional conduct.
Medicare/Medicaid exclusions (all health care practitioners)
U.S. Drug Enforcement Administration actions (all health care practitioners)
Below are more details concerning the six types of actions reportable to the NPDB.
1. Medical Malpractice Payments
Each entity that makes a payment for the benefit of a physician, dentist, or other health
care practitioner in settlement of or in satisfaction in whole or in part of, a written claim or
judgment against that practitioner must report the payment to the NPDB. A professional
corporation or other business entity comprised of a sole practitioner that makes a
payment for the benefit of a named practitioner must report that payment to the NPDB.
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However, individual practitioners are not required to report payments they make out of
their personal funds. A payment made as a result of a suit or claim solely against an
entity (for example, a hospital, clinic, or group practice) that does not identify an
individual practitioner is not reportable under the NPDB's current regulations.
Reports must be submitted to the NPDB and the appropriate state licensing board within
30 days of the date that a payment is made (the date of the payment check). The report
must be submitted regardless of how the matter was settled (for instance, court
judgment, out-of-court settlement, or arbitration) or the amount of the payment.
2. Licensure Actions Taken by Boards
State medical and dental boards must report to the NPDB certain disciplinary actions
related to professional competence or conduct taken against physicians or dentists.
Examples of these licensure actions include revocations, suspensions, censures,
reprimands, probations, and surrenders. They must also report revisions to adverse
licensure actions, such as reinstatement of licenses. These boards must submit these
Adverse Action Reports within 30 days of the date of the formal approval of the licensure
action.
3. Clinical Privileges Actions
Hospitals and other health care entities, including managed care organizations, must
report to the NPDB certain adverse professional review actions taken against a
physician's or dentist's clinical privileges or panel membership. Reportable adverse
clinical privileges/panel membership actions are based on a physician's or dentist's
professional competence or professional conduct that adversely affects, or could
adversely affect, the health or welfare of a patient. Adverse actions include reducing,
restricting, suspending, revoking, or denying privileges, and also include a health care
entity's decision not to renew a physician's or dentist's clinical privileges/panel
membership if that decision was based on the practitioner's professional competence or
professional conduct.
Hospital or eligible health care entities must report.

Professional review actions that adversely affect a physician's or dentist's clinical
privileges/panel membership for a period of more than 30 days.

Acceptance of a physician's or dentist's surrender or restriction of clinical
privileges/panel membership while under investigation for possible professional
incompetence or improper professional conduct, or in return for not conducting an
investigation or taking a reportable professional review action.
Hospitals and other entities may, but are not required, to report clinical privilege/panel
membership actions concerning other health care practitioners.
Hospitals and other health care entities must report to the NPDB clinical privileges/panel
membership actions within 30 days from the date the adverse action was taken or
clinical privileges were voluntarily surrendered. A copy of the report must be printed and
submitted to the appropriate state licensing board.
4. Professional Society Membership Actions
Professional societies must report professional review actions based on reasons related
to professional competence or professional conduct that adversely affect the
membership of a physician or dentist.
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Professional societies may, but are not required, to report professional society
membership actions concerning other health care practitioners.
These actions must be reported to the NPDB within 30 days from the date the adverse
action was taken. A copy of the report must be printed and submitted to the appropriate
State licensing board.
5. Medicare/Medicaid Exclusions
NPDB Medicare/Medicaid exclusions identify practitioners who have been declared
ineligible for Medicare and Medicaid payments. Hospitals, managed care organizations,
and other providers are prohibited from billing the Medicare and Medicaid programs for
any services that might be rendered by these providers.
In 1997 reports of exclusions from the Medicare and Medicaid programs against health
care practitioners were added to the NPDB. The NPDB now includes Medicare/Medicaid
exclusions and reinstatement, some of which go back as far as 1979.
6. US Drug Enforcement Administration Actions
The Drug Enforcement Administration (DEA), an agency of the U.S. Department of
Justice, reports to the NPDB revocations, restrictions and voluntary surrenders of
practitioners' controlled substances registrations.
Failure to Report to NPDB
Penalties for not reporting are specific to each reporting entity type. They range from
fines to publication of the entity's name in the Federal Register and loss of legal
immunity for damages for peer review actions.
Who Must Query the NPDB?
Each hospital must, by law, query when a practitioner applies for clinical privileges or
medical staff appointment (courtesy or otherwise) or wishes to add or expand privileges
at the hospital. A hospital must also query every two years on practitioners with hospital
clinical privileges or membership on the medical staff (courtesy or otherwise). Hospitals
must register with the NPDB to query.
Who May Query the NPDB?





Other health care entities and professional societies with formal peer review, when
they are entering an employment or affiliation relationship with a physician, dentist,
or other health care practitioner or in conjunction with peer review activities
Boards of medical/dental examiners and other health care practitioner licensing
boards
Plaintiffs' attorneys or plaintiffs representing themselves (under very limited
circumstances)
Health care practitioners (self-query)
Researchers (statistical data, which does not identify practitioners, only)
10.2 Healthcare Integrity and Protective Data Bank (HIPDB)
The HIPDB was established by Section 221(a) of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Public Law 104-91. The legislation that brought
HIPDB into being is also referred to as Section 1128E of the Social Security Act. Final
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regulations governing the HIPDB are codified at 45 CFR Part 61. In 1997, the HHS
Office of Inspector General (OIG) and U.S. Department of Justice asked the Practitioner
Data Banks Branch (PDBB) to develop and operate the HIPDB. This Data Bank opened
for reporting in November 1999 and querying in March 2000.
The HIPDB collects and maintains information concerning final adverse actions taken
against health care practitioners, providers, and suppliers. This information is made
available to Government agencies and health plans. The HIPDB's purpose is to combat
fraud and abuse in health insurance and health care delivery and to promote quality
care.
HIPDB Reports
Federal and state government agencies and health plans must report final adverse
actions taken against health care practitioners, providers, and suppliers to the HIPDB.
Settlements in which no findings or admissions of liability have been made are statutorily
excluded from being reported. Additionally, actions with respect to medical malpractice
claims are not reportable to the HIPDB.
Who Should Report to the HIPDB?

Federal and State Government agencies
 Health plans
Federal and state government agencies and health plans must register with the HIPDB
to report.
What is Reportable to the HIPDB?





Licensing and certification actions
Health care related civil judgments
Health care related criminal convictions
Exclusions from Federal and State health care programs
Other adjudicated actions or decisions
Final adverse actions must be reported to the HIPDB within 30 calendar days of the date
the action was taken or the date when the reporting entity became aware of the final
adverse action, or by the close of the entity's next monthly reporting cycle, whichever is
later. Below are more details about the five types of actions reportable to the HIPDB.
1. Licensing and Certification Actions
Federal and state licensing and certification agencies must report final adverse licensure
actions taken against health care practitioners, providers, or suppliers. A reportable final
adverse action must be a formal or official action; it need not be specifically related to
professional competence or professional conduct.
The points below offer additional guidance about licensing and certification actions that
are reportable, but this is not an all exclusive list. Other actions of this nature may also
be reported.

Formal or official actions, such as the revocation or suspension of a license or
certification agreement or contract for participation in federal or state health care
programs; reprimands, censures, and probations.
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
Any other loss of license, certification agreement, or contract for participation in
Federal or State health care programs; or the right to apply for or renew a license or
certification agreement or contract of the practitioner, provider or supplier, whether
by operation of law, voluntary surrender, non-renewal (excluding non-renewals due
to nonpayment of fees, retirement, or change to inactive status), or otherwise.

Any other negative action or finding by a federal or state agency that is publicly
available information and is rendered by a licensing or certification authority,
including, but not limited to, limitations on the scope of practice, liquidations,
injunctions, and forfeitures. This also includes final adverse actions rendered by a
Federal or State licensing or certification authority, such as exclusions, revocations,
or suspensions of licenses or certifications that occur in conjunction with settlements
in which no finding of liability has been made (although such a settlement itself is not
reportable under the statute). This definition excludes administrative fines or
citations, corrective action plans, and other personnel actions unless they are
connected to the billing, provision or delivery of health care services and taken in
conjunction with other licensure or certification actions such as revocations,
suspensions, censures, reprimands, probations, or surrenders.
2. Health Care Related Civil Judgments
Federal and State attorneys and health plans must report civil judgments (other than
malpractice judgments) against health care practitioners, providers, or suppliers related
to the delivery of a health care item or service, regardless of whether the civil judgment
is the subject of a pending appeal.
3. Health Care Related Criminal Convictions
Federal, state and, local prosecutors must report criminal convictions and injunctions
against health care practitioners, providers, and suppliers related to the delivery of
health care items or services.
4. Exclusions from Federal and State Health Care Programs
Federal and state agencies must report health care practitioners, providers, or suppliers
excluded from participation in Federal or State health care programs. The term
"exclusion" means a temporary or permanent debarment of an individual or entity from
participation in a Federal or State health-related program. Items or services furnished by
these individuals or entities are not reimbursable under applicable Federal or State
health-related programs.
5. Other Adjudicated Actions or Decisions
Federal and state government agencies and health plans must report adjudicated
actions or decisions taken against health care practitioners, providers, and suppliers.
The term other adjudicated actions or decisions" means: Formal or official actions taken
against a health care practitioner, provider, or supplier by a federal or state government
agency or a health plan; that include the availability of a due process mechanism; and
are based on acts or omissions that affect or could affect the payment, provision, or
delivery of a health care item or service.
Failure to Report to the HIPDB
Any health plan that fails to report information on an adverse action required to be
reported to the HIPDB shall be subject to a civil money penalty of up to $25,000 for each
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adverse action not reported. If HHS determines that a government agency has
substantially failed to report in accordance with the law governing the HIPDB, the name
of the agency will be published.
Who May Query the HIPDB?

Federal and state government agencies
Health Plans
 Health care practitioners, providers and suppliers (self-query)
 Researchers (statistical data, which does not identify practitioners, only)

Federal and state government agencies and health plans must register with the HIPDB
to query. Other health care entities, professional societies and state licensing boards
also must register with the NPDB to query.
10.3 General NPDB-HIPDB Information
Confidentiality of Information
Information reported to the NPDB - HIPDB (Data Banks) is considered confidential and
shall not be disclosed except as specified by law. The Data Banks are not accessible to
the general public. A comprehensive security system prevents manipulation of and
access to the data by unauthorized staff or external sources. Federal statutes may
subject individuals and entities to criminal penalties, including fines and imprisonment, or
civil money penalties for the inappropriate use or disclosure of Data Bank information.
When the Data Banks receive a properly completed query the computer system
performs a validation process that matches subject (i.e., practitioner) identifying
information submitted in the query with information previously reported to the Data
Banks. Information reported about a specific subject is released to an eligible querier
only if the identifying information provided in the query matches the information in a
report. All data are transmitted over an Internet Secure Socket Layer (SSL) connection.
Notification of a Report in the Data Bank(s)
Whenever a report is submitted or modified, the Data Banks send a Notification of a
Report in the Data Bank(s), along with a copy of the report, to the practitioner's,
provider's or supplier's address as provided by the reporting entity. Reported
practitioners, providers or suppliers are permitted to add a statement to and/or dispute
the report. At any time, practitioners, providers or suppliers are also entitled to query the
Data Banks through the Internet to determine if they are the subject of any report(s).
Why Self-Query the Data Banks?
Health care practitioners might wish to self-query simply to find out if they are the subject
of a report, or because a licensing, credentialing, or insurance entity requires a copy of
your self-query response before you participate in its program. Any arrangement
between you and one of these entities is voluntary. You may share your self-query
response with whomever you choose.
Steps to Submitting a Self-Query
Step 1: To initiate a self-query, access the Internet and go to www.npdb-hipdb.com.
Most up-to-date browsers support the self-query function. You may always check the
Web site to ensure that your Internet browser supports self-querying before proceeding.
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Step 2: Click the Perform a Self-Query icon. The Welcome to the Self-Query Service
screen displays.
Step 3: Print the Helpful Hints for Submitting a Self-Query for use as a reference while
completing the on-line application.
Step 4: Click the Perform a Self-Query icon on the Welcome screen to proceed to the
Self-Query Options screen. At this point, you are ready to enter and transmit an
individual self-query.
Step 5: Fill in the blanks on the Self-Query Input screen with the appropriate information.
If you're not sure what to provide, refer to the Helpful Hints or click the Help button.
Step 6: At the bottom of the Self-Query Input screen, your credit card information (VISA,
MasterCard, Discover, or American Express) will be requested in order to pay the selfquery fee ($8.00) for each Data Bank. All self-query requests are submitted to both Data
Banks to ensure full disclosure.
Step 7: When you have completed the form click the Continue button.
Step 8: Verify the information that appears on the Self-Query Status screen and click the
Continue button.
Step 9: A formatted copy of the self-query is generated immediately after you transmit
your on-line application.
Step 10: To complete the self-query process, you must print the formatted copy, sign
and date it in the presence of a notary public, and mail the notarized copy, known as a
self-query application, to the address specified on the application. A self-query without
proper notarization cannot be processed. Notarization of your application ensures your
privacy and the confidentiality of Data Bank information.
Your self-query response will be mailed to you. It will consist of either a notification that
no information about you exists in the Data Banks or a copy of all report information
concerning you that has been submitted by reporting entities.
Ensuring Accuracy of Personal Information
Reporting entities are responsible for the factual accuracy of the information they report.
If you find inaccurate information in a report submitted about you, including an outdated
mailing address, contact the reporting entity to request that it correct the report. The
Data Banks cannot modify information submitted in reports; however, if notified, the
NPDB-HIPDB can maintain your current mailing address, even if your address as
specified in a report is inaccurate. Access the Report Response Service located at
www.npdb-hipdb.com to notify the Data Banks of an address change.
Correcting Report Information
If a reporting entity declines to correct a report you believe is wrong or does not void a
report you feel should not have been submitted, you may add a statement to the report,
initiate a dispute, or do both. You may not dispute the merits of a medical malpractice
claim or the appropriateness of, or basis for, an adverse action. If you do not have the
relevant Notification of a Report in the Data Bank(s), you will need to self-query to obtain
the Data Bank Control Number (DCN) for the report in question.
Adding a Statement
If you wish to add a statement to a report, access the Report Response Service at
www.npdb-hipdb.com. To ensure security, each Notification of a Report in the Data
Bank(s) contains a unique password for access to the Report Response Service. You
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must have this password and the DCN for the report to add your statement. If you do
not have these numbers available, contact the Data Banks' Customer Service Center.
When your statement is processed, a new copy of the report, that includes your
statement, is sent to all queriers who received a copy of your report in the last 3 years.
The statement is also included in your report when it is released to future queriers. You
may add a statement to a report at any time.
Disputing a Report
If you wish to dispute a report, access the Report Response Service at www.npdbhipdb.com. You must have a password and the report's DCN as described above. When
your dispute is processed, it is sent to all queriers who received a copy of your report in
the last 3 years and is included with your report when it is released to future queriers.
Secretarial Review Process
If a reporting entity declines to change the disputed report, you may request that the
Secretary of the Department of Health and Human Services review the matter by
following the procedures outlined at www.npdb-hipdb.com. You must allow the reporting
entity 30 days to void or change the report before requesting Secretarial Review. The
Secretary does not review the merits of a medical malpractice claim or the
appropriateness of, or basis for, an adverse action. The Secretary can review only
whether a report is legally required or accurately describes the reported payment or
action. When filing a request for Secretarial Review, you must submit all pertinent
documentation supporting your claim.
10.4 Glossary
A Correction (Report) is a change intended to supersede a current report in the NPDB
and/or HIPDB because it contains an error or omission. The reporting entity must submit
a Correction as soon as possible after the discovery of an error or omission in a report. A
Correction may be submitted to supersede the current version of a report as often as
necessary.
A physician is a doctor of medicine or osteopathy who is legally authorized to practice
medicine or surgery by a State, or who, without authority, holds himself or herself out to
be so authorized.
A dentist is a doctor of dental surgery, a doctor of dental medicine, or the equivalent,
who is legally authorized to practice dentistry by a State, or who, without authority, holds
himself or herself out to be so authorized.
Federal or State Agencies are agencies responsible for the licensing and certification
of health care providers, suppliers or practitioners.
A health care entity is:
1. a hospital;
2. an entity that provides health care services and engages in professional review
activity through a formal peer review process for the purpose of furthering quality health
care, or a committee of that entity;
3. a professional society or a committee or agent thereof, including those at the national,
State, or local level, of physicians, dentists or other health care practitioners that follows
a formal peer review process for the purpose of furthering quality health care.
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A health plan is a plan, program or organization that provides health benefits, whether
directly, through insurance, reimbursement, or otherwise, which includes but is not
limited to:
 A policy of health insurance;
 A contract of a service benefit organization:
 A membership agreement with a health maintenance organization or other
prepaid health plan;
 A plan, program, or agreement established, maintained or made available by
an employer or group of employers; a practitioner, provider or supplier group; a
third-party administrator; an integrated health care delivery system; an employee
welfare association; a public service group or organization; or a professional
association; and
 An insurance company, insurance service, or insurance organization that is
licensed to engage in the business of selling health care insurance in a State,
and which is subject to state law which regulates health insurance.
A health care practitioner is an individual who is licensed or otherwise authorized by a
State to provide health care services; or any individual who, without state authority,
holds himself or herself to be authorized to provide health care services.
A health care provider is a provider of services as defined in Section 1961(u) of the
Social Security Act; any health care entity (including a health maintenance organization,
preferred provider organization, or group medical practice) that provides health care
services and follows a formal peer review process for the purpose of furthering quality
health care; and any other health care entity that, directly or through contracts, provides
health care services.
A health care supplier is a provider of medical or other health care services as
described in Section 1861(s) of the Social Security Act; or any individual or entity who
furnishes, whether directly or indirectly, or provides access to, health care services,
supplies, items, or ancillary services (including, but not limited to, durable medical
equipment suppliers; manufacturers of health care items; pharmaceutical
suppliers and manufacturers; health record services such as medical, dental, and
patient records; health data suppliers; and billing and transportation service
suppliers). The term also includes any individual or entity under contract to
provide such supplies or ancillary services; health plans as defined in 45 CFR
61.3 (including employers that are self-insured); and health insurance producers
(including but not limited to agents, brokers, solicitors, consultants, and reinsurance
intermediaries).
An Initial Report is the first report submitted to and processed by the NPDB and/or
HIPDB. It is the current version of the report until a Correction or Void is submitted.
A Revision to Action (Report) is an action relating to and modifying an adverse action
previously reported to the NPDB and/or HIPDB. A Revision to Action is intended to
report a subsequent action, not correct errors in a previously submitted report. It links to
the previously submitted report via the Data Bank Control Number. An entity that reports
an initial adverse action must also report any revision to that action. A Revision to
Action should not be reported unless the initial action was reported to the NPDB.
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A Void (Report) is a retraction of a report in the NPDB and/or HIPDB in its entirety.
Voided reports are not disclosed in response to queries, including self-queries by
practitioners. Reports may be voided only by the reporting entity or the Secretary of HHS
through Secretarial Review.
10.5 Contacting The Data Banks
For additional information, visit the NPDB-HIPDB Web site at www.npdb-hipdb.hrsa.gov.
If you need assistance, contact the NPDB-HIPDB Customer Service Center at:
NPDB-HIPDB
P.O. Box 10832
Chantilly, VA 20153-0832
Phone: 1-800-767-6732
Outside the U.S.: 1-703-802-9380
TDD: 1-703-802-9395
E-mail: [email protected]
Information specialists are available on weekdays from 8:30 a.m. to 6:00 p.m. (5:30 p.m.
on Fridays) Eastern Time. The NPDB-HIPDB Customer Service Center is closed on all
Federal holidays.
309
References: Endnotes
Unless otherwise stated, all online references were last accessed during
the month of August 2009.
Chapter 1
1
National Council of State Boards of Nursing. Nurse Licensure Compact information includes
comprehensive FAQs and participating states. Accessed: https://www.ncsbn.org/156.htm.
2
NCSBN. APRN Compact. Accessed https://www.ncsbn.org/917.htm.
3
HB 1483 (78th Regular Texas Legislative Session) required Hepatitis C and SB 39 (79th
Regular Texas Legislative Session) required bioterrorism continuing education hours. Both
requirements have expired.
4
Zych, J. (January 2002). Use of advanced practice titles. RN Update, 33 (1), 6. Accessed:
http://www.bon.state.tx.us/about/newsletters.html.
5
BON. Specific Information for Completing the Application for Licensure to Practice as an
advanced practice registered nurse. Accessed: http://www.bon.state.tx.us/practice/apnapplquestions.html.
6
HB 2680, 79th Regular Legislative Session (2005). Accessed:
http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=79R&Bill=HB2680. The bill
added §112.051,Texas Occupations Code, creating a volunteer retired status with reduced
licensure requirements. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.112.htm#112.051.
BON Rules 217.11, Standards of Nursing Practice and §217.12, Unprofessional Conduct,
constitute the basic standards established by the BON. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=22&pt=11&ch=217&rl=Y.
7
BON Rule, TAC §221.16. Provision of Anesthesia Servies by Nurse Anesthetists in Outpatient
Settings. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=221&rl=16.
8
Chapter 2
9
BON. (June 2008). Strategic Plan for Fiscal Years 2009-13. Accessed:
http://www.bon.state.tx.us/about/publications.html.
10
BON Website is an essential resource. News about workshops and board meetings may be
accessed at http://www.bon.state.tx.us/about/events.html.
11
BON. Advanced Practice Information. Accessed: http://www.bon.state.tx.us/practice/genapn.html.
12
Sunset Commission. What is Sunset and a Guide to the Sunset Process. Accessed:
http://www.sunset.state.tx.us/guide.htm. Sunset Reports may be accessed from the Sunset
Commission’s home page, www.sunset.state.tx.us.
13
BON Rules & Regulations. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=11.
§2001.039, Government Code, requires state agencies to review existing rules every four
years. Accessed: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2001.htm#2001.039.
14
310
§§2001.023 – 2001.035, Government Code, are procedural rules for adoption of administrative
office or agency rules. Accessed:
http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2001.htm#2001.023.
15
Secretary of State Rule, 1 TAC §91.37. Texas Register: How to File Emergency Rules.
Accessed:
16
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=1&pt=4&ch=91&rl=37; and §2001.034, Government Code. Emergency Rulemaking.
Accessed: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2001.htm#2001.034 .
17
TNA. (2009) Annotated Guide for RNs to the Texas Nursing Practice Act, 9th Ed. Accessed:
http://www.texasnurses.org/storeindex.cfm.
Chapters 102 – 111, Occupations Code, contains laws applicable to all health care providers.
Accessed: http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.102.htm.
18
19
Medical Practice Act includes Chapters 151 – 166, Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.151.htm, and Medical Board Rules are in 22
TAC, Part 9. Accessed: http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=9.
20
Pharmacy Practice Act includes Chapters 551 – 569, Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.551.htm . Pharmacy Board Rules are in 22 TAC,
Part 15. Accessed: http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=15.
21
Health & Human Services Commission. About HHSC. Accessed:
http://www.hhsc.state.tx.us/about_hhsc/index.html.
22
DSHS Health Facility Program Rules includes a full list of all health care facilities regulated by
DSHS. Accessed http://www.dshs.state.tx.us/HFP/rules.shtm#rural.
Chapter 3
23
Wikipedia. Professional body. Accessed: http://en.wikipedia.org/wiki/Professional_association
24
Wikipedia. Credential. Accessed: http://en.wikipedia.org/wiki/Credential.
25
Accredting agencies for nursing educational programs include the following: Commission on
Collegiate Nursing Education accessed at http://www.aacn.nche.edu/Accreditation/, and National
League for Nursing Accrediting Commission accessed at http://www.nlnac.org/home.htm.
26
U.S. Department o f Education. Overview of Accredtation and National Recognition of
Accrediting Agencies by the U.S. Secretary of Education. Accessed:
http://www.ed.gov/admins/finaid/accred/index.html.
27
APRN Consensus Work Group & NCSBN APRN Advisory Committee. (July 7, 2008).
Consensus Model for APRN Regualtion: Licensure, Accrediation, Certification & Education and
Model Legislative Language. Accessed: https://www.ncsbn.org/170.htm.
Chapter 4
28TLO.
History of HB 18, 71st R Texas Legislative Session (1989). Accessed:
http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=71R&Bill=HB18
BON Rule. 22 TAC §222.1(4). Definition of “carrying out or signing a prescription drug order.”
Accessed:
29
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=11&ch=222&rl=1
30
“Controlled Substance” is defined in multiple statutes and rules.
311
Health & Safety Code, §481.002(5), Controlled Substances Act. Accessed:
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.481.htm#481.002.
TSBP Rules, 22 TAC §291.31(9). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=15&ch=291&rl=31.
TMB Rule 22 TAC §193.2(4). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=9&ch=193&rl=2.
31
DSHS. Controlled Substance Scheduling for most recent year. Accessed:
http://www.dshs.state.tx.us/dmd/control_subst_sched.shtm.
32
Carisoprodol (Soma) has been reclassified as a controlled substance in Schedule IV and
prescriptions must be completed in accordance with §481.074(k),Health & Safety Code.
Accessed: http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.481.htm#481.074.
§481.102 - §481.105, Health & Safety Code. Penalty Groups of controlled substances.
Accessed: http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.481.htm#481.102.
33
34
“Dangerous drug” definitions
§483.001(2), Health & Safety Code (Dangerous Drug Act) Acessed:
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.483.htm#483.0001.
TMB Rule, 22 TAC §193.2(5). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=9&ch=193&rl=2.
TSBP Rule, 22 TAC §291.31(10). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=15&ch=291&rl=31.
35
Texas DPS Controlled Substances Registration Program. Accessed:
http://www.txdps.state.tx.us/criminal_law_enforcement/narcotics/narccsr.htm.
36
Office of Deversion Control. Controlled Substance Schedules. Accessed:
http://www.deadiversion.usdoj.gov/schedules/index.html.
37
TSBP. (Fall 2003). Summary of Legislation Passed by the 78th Legislature that Impacts the
Practice of Pharmacy. Newsletter, p.2. http://www.tsbp.state.tx.us/files_pdf/Fall_2003.pdf
38
Texas Department of Safety. MODPAAPRN Form (To change site or delegating physician).
Accessed: http://www.txdps.state.tx.us/forms/ and scroll to “Narcotics Service Forms” and select
“MODPAAPRN”.
39
DEA Registration Change Request Forms, (to change address). Accessed:
http://www.deadiversion.usdoj.gov/drugreg/change_requests/index.html.
DEA Registration Online Renewal. Accessed:
http://www.deadiversion.usdoj.gov/drugreg/reg_apps/online forms.htm
40
TSBP Rule 309(3). Generic Substitution. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=22&pt=15&ch=309&rl=3.
41
DPS Rule 13.202. Receipt or Disposition of Controlled Substance. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg
=1&p_tac=&ti=37&pt=1&ch=13&rl=202.
312
Chapter 5
42
CNAP. Why CNSs are High Value Providers. Includes research citations. Accessed:
http://www.cnaptexas.org/associations/9823/files/pdf_Talking_Points_CNS.pdf.
43
BON. Basic Guidelines for Development of a Course in Diagnosis and Management of
Problems in the Clinical Specialty Area for CNSs. Accessed:
http://www.bon.state.tx.us/practice/cnscourse.html.
44
CNS Competency Task Force. (2008). Organizing Framework and CNS Core Competencies.
Accessed: http://www.nacns.org/Educators/ResourcesforEducators/tabid/139/Default.aspx.
45
AANP Position Statements/Papers including Scope of Practice for Nurse Practitioners and
Standards of Practice. Accessed
http://www.aanp.org/AANPCMS2/Publications/PositionStatementsPapers/.
46
NAPNAP (2008). Position Statement on Age Parameters for Pediatric Nurse Practitioner
Practice. J Pediatr Health Care. 22, e1-e2. Accessed:
http://download.journals.elsevierhealth.com/pdfs/journals/0891-5245/PIIS0891524508000552.pdf.
47
NAPNAP (2005) Position Statement on The Acute Care Pediatric Nurse Practitioner. J Pediatr
Health Care. 19, 38A-39A. Accessed:
http://download.journals.elsevierhealth.com/pdfs/journals/0891-5245/PIIS0891524505002592.pdf.
48
National conference of Gerontological Nurse Practitioners (2003). Clinical Practice of
Gerontological Nurse Practitioners. Accessed:
https://www.gapna.org/component/option,com_docman/Itemid,233/task,doc_view/gid,81/,
Definition of professional nursing in §301.002(2), Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.002
49
50
BON. FAQ on Acute Care Pediatric Nurse Practitioner Examination. Accessed:
http://www.bon.state.tx.us/practice/faq-apngen.html#acute.
BON Positions Statement 15.23. The RN’s Use of Complementary Modalities. Accessed:
http://www.bon.state.tx.us/practice/pdfs/position.pdf.
TMB Rule 200.3. Practice Guidelines for the Provision of Complementary and Alternative
Medicine. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=22&pt=9&ch=200&rl=Y.
51
52
BON. FAQ on Nurses Performing Radiologic Procedures. Accessed:
http://www.bon.state.tx.us/practice/faq-radiologicprocedures.html.
53
BON. Delegation Resource Packet. Accessed at
http://www.bon.state.tx.us/practice/delegationresources.html.
54
Zychowicz, M.E. (June 23, 2008). Writing a physical therapy prescription. Advance for Nurse
Practitioners. Accessed: http://nurse-practitioners.advanceweb.com/Article/Writing-a-PhysicalTherapy-Prescription-2.aspx.
55
CMS. (October 28, 2005). MMA- Evidence of Medical Necessity: Power Wheelchair and Power
Operated Vehicle (POV)/Power Mobility Device (PMD) Claims. Accessed:
http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM3952.pdf.
56
CMS. (March 10, 2006). Payment for Power Mobility Device (PMD Claims. Accessed:
http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM4372.pdf.
57
CMS. (September 24, 2004). MMA-Nurse Practitioners as Attending Physicians in the
Medicare Hospitce Benefit. Accessed:
http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM3226.pdf.
313
Orthotists & Prosthetist Practice Act, §605.002(14) and (18). Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.605.htm#605.002.
58
59
WIC program information and forms for health care providers may be accessed at
https://webds.dshs.state.tx.us/wiclessons/english/healthcare/.
60
Sutliff, L.S. (2002) Work-related injuries: Early return is essential and preferable. Advance for
Nurse Practitioners. 10 (6), 28-33. Accessed: http://nursepractitioners.advanceweb.com/Article/Work-Related-Injuries.aspx.
61
Advance for Nurse Practitioners (2008). 2007 Nurse Practitioner Salary Survey. Accessed:
http://nurse-practitioners.advanceweb.com/article/2007-salary-survey-results-a-decade-of-growth3.aspx.
NP Central. Salary Data, Employment Contract Template and and many other supports.
Accessed http://www.nurse.net/cgi-bin/start.cgi/salary/index.html.
62
Doerfler, R. E. (2008). A guide to clinical privileges for NPs. Advance for Nurse Practitioners
www.advanceweb.com. September 1, 2008. Accessed: http://nursepractitioners.advanceweb.com/Article/NP-Guide-to-Clinical-Privileges.aspx.
63
The Center for Health Professions UCSF (2007). Overview of Nurse Practitioner Scopes of
Practice in the United States – Discussion and Chart Overview of Nurse Practitioner Scopes of
Practice in the United States. Accessed: http://futurehealth.ucsf.edu/Public/Publications-andResources/Content.aspx?topic=Overview_of_Nurse_Practitioner_Scopes_of_Practice_in_the_Un
ited_States or
http://www.acnpweb.org/i4a/pages/index.cfm?pageid=3465.
Chapter 6
64
AANA. History of Nurse Anesthesia Practice. Accessed
http://www.aana.com/aboutaana.aspx?ucNavMenu_TSMenuTargetID=173&ucNavMenu_TSMen
uTargetType=4&ucNavMenu_TSMenuID=6&id=354&.
65
AANA. Data on anesthetics in the U.S. delivered by CRNAs. Accessed www.aana.com,
TANA. Data on the counties served by CRNAs. Accessed
http://www.txana.org/displaycommon.cfm?an=1&subarticlenbr=8.
66
AANA. Accredited Nurse Anesthesia Educational Programs in Texas. Accessed
http://webapps.aana.com/AccreditedPrograms/accreditedprograms.asp?State=TX
67AANA.
Education of Nurse Anesthetists in the United States,
http://www.aana.com/becomingcrna.aspx?ucNavMenu_TSMenuTargetID=101&ucNavMenu_TS
MenuTargetType=4&ucNavMenu_TSMenuID=6&id=1018&
68
AANA. Professional Practice Documents. Accessed
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=51&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=180.
69
Letter from Katherine A. Thomas to Juan Quintana (April 17, 2006). Accessed
http://www.txana.org/associations/8633/files/PD-PainMgmtSvcsCRNAs.pdf,
70
Texas Attorney General Opinion No. JC-0117 (September 28, 1999). Accessed
http://www.oag.state.tx.us/opinions/opinions/49cornyn/op/1999/pdf/JC0117.pdf.
71
Letter from Katherine A. Thomas to Sandi Peters, CRNA (December 13, 2004). Last accessed
at http://www.txana.org/associations/8633/files/PD-BNELetterCRNAPractice12-13-2004.pdf.
72
Texas Medical Board (May 2008). Physician by Specialty. Accessed
http://www.tmb.state.tx.us/agency/statistics/demo/docs/d2009/0509/spec.php. Current physician
314
demographics. Accessed
http://www.tmb.state.tx.us/agency/statistics/demo/docs/d2009/0509/0509stats.php.
73
Dental Board Rules in Chapters 108 and 110. Accessed
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=5.
25 TAC §133.41(a) is the DSHS hospital licensing rule on anesthesia services,
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=25&pt=1&ch=133&rl=41
74
75
DSHS. Ambulatory Surgical Center Licensing Rules. Accessed
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=25&pt=1&ch=135&sch=A
&rl=Y.
§§301.601 – 301.607, Texas Occupations Code, the section of the Nursing Practice Act
requiring the BON to regulate delivery of anesthesia by nurse anesthetists in outpatient settings.
Accessed http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.601.
76
BON. 22 TAC §221.16, regarding delivering anesthesia in outpatient settings. Accessed
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=221&rl=16.
77
78
AANA. Standards for Office-Based Anethesia Practice. Accessed
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=51&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=785.
79
BON. Registration Application for the Outpatient Nurse Anesthesia Registry. Accessed:
http://www.bon.state.tx.us/practice/pdfs/apn-outpnt.pdf.
80
BON. Guidelines for Determining Scope of Practice with FAQs Related to Scope of Practice.
Accessed: http://www.bon.state.tx.us/practice/gen-APN.html.
81
BON. Position Statement 15.18, Carrying Out Orders from advanced practice registered
nurses. Accessed: http://www.bon.state.tx.us/practice/position.html#15.18.
42 CFR §410.32 Diagnostic x-ray test, diagnostic laboratory tests, and other diagnostic tests:
Condiditons. Accessed: http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr410_08.html.
42 CFR §410.32 Diagnostic x-ray test, diagnostic laboratory tests, and other diagnostic tests:
Condiditons. Accessed: http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr410_08.html.
82
83
BON. Letter confirming CRNA orders do not require co-signature. Accessed:
http://www.txana.org/associations/8633/files/PD-BNELetterCRNAandPerioperativeOrders3-2095.pdf.
21 CFR §1301.11 Exemption of agents and employees; affiliated practitioners. Last accessed
at http://www.access.gpo.gov/nara/cfr/waisidx_09/21cfr1301_09.html.
84
85
BON. Position Statements 15.7 and 15.8 reflect the role that non-CRNA nurses are permitted
to have in administering analgesia/anesthetics via a catheter technique and in administering
moderate sedation. Accessed: http://www.BON.state.tx.us/practice/position.html.
86
TDI. Texas Standardized Credentialing Application. Accessed:
http://www.tdi.state.tx.us/hmo/crform.html.
87
AANA (2005). Guidelines for core clinical privileges. Accessed:
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=51&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=728.
88
AANA (October 2002) Legal Briefs: Fairness in credentialing and the certified registered nurse
anesthetist. This and other Legal Brief articles related to privileging and due process. Accessed:
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=187.
315
89
Texas Insurance Code citations regarding APRNs. Accessed: http://www.statutes.legis.state.tx.us/.
APRN language in HMO Act, §843.312. Accessed:
http://www.statutes.legis.state.tx.us/Docs/IN/htm/IN.843.htm#843.312.
APRN language in PPO Act, §1301.052. Accessed:
http://www.statutes.legis.state.tx.us/Docs/IN/htm/IN.1301.htm#1301.052.
90
45 Blumenreich, G.A. (1991) Legal Briefs: Medicare Fraud and Abuse. Accessed:
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=2425.
91
Van Nest, RL (April 2006). Legal Brief: Can a CRNA be Medically Directed and an Independent
Contractor for Tax Purposes at the Same Time? Accessed:
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=4584
92
AANA. Documenting the standard of care: The anesthesia record. Aceessed:
http://www.aana.com/resources.aspx?ucNavMenu_TSMenuTargetID=51&ucNavMenu_TSMenuT
argetType=4&ucNavMenu_TSMenuID=6&id=713.
§301.152(d) Occupations Code. Rules Regarding Specialized Training, subsection (d), directs
state agencies to accept the documentation of the APRN. Accessed:
http://tlo2.tlc.state.tx.us/statutes/docs/OC/content/htm/oc.003.00.000301.00.htm#301.152.00.
93
42 CFR §410.69. Services of a certified registered nurse anesthetist or an anesthesiologist’s
assistant: Basic rule and definitions. Accessed:
http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr410_08.html.
94
95
CMS. Anesthesia provider webpage. Accessed: http://www.cms.hhs.gov/center/anesth.asp
96
TrailBlazer Health Enterprises, LLC contracts with CMS to be the regional Medicare
intermediary responsible for Medicare provider enrollment and claims processing in Texas.
TrailBlazerhealth Home page. Accessed: www.trailblazerhealth.com/Medicare.aspx.
Indigent Health Care Act, §61.0285, Health & Safety Code, includes a list of optional services
that a county may provide for indigent residents. Accessed:
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.61.htm#61.0285.
97
98
Federal Register (November 13, 2001) 66, 219, 56762. Accessed:
http://www.gpoaccess.gov/fr/retrieve.html. Select “2001” and enter “56762”.
99
AANA. State and federal supervision requirements. Accessed:
http://www.aana.com/Advocacy.aspx?ucNavMenu_TSMenuTargetID=49&ucNavMenu_TSMenuT
argetType=4&ucNavMenu_TSMenuID=6&id=131.
44 Mannino,
M.J. (1994). The Business of Anesthesia: Practice Options for Nurse Anesthetists.
Available for purchase from the AANA Website. Accessed:
http://www.aana.com/resources.aspx?ucNavMenu_TSMenuTargetID=160&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=1597.
101
Van Nest, RL (April 2006). Legal Brief: Can a CRNA be Medically Directed and an
Independent Contractor for Tax Purposes at the Same Time? Accessed:
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=4584.
102
Legal Briefs Table of available articles,
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=187.
§157.060. Physician Liability for Delegated Act was last accessed at
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.157.htm#157.060.
103
316
104
Chapter 162, Occupations Code, is the portion of the Medical Practice Act that limits the types
of business relationships that physicians may enter and employment they may accept. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.162.htm#162.001.
105
Legal Briefs: Professional Corporations,
http://www.aana.com/Resources.aspx?ucNavMenu_TSMenuTargetID=54&ucNavMenu_TSMenu
TargetType=4&ucNavMenu_TSMenuID=6&id=2499
§301.152, Occupations Code, discusses the BON’s ability to limit false or misleading
advertising by nurses. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.152.
106
107
Chapters 102 and 104, Texas Occupations Code regulate advertising and related issues by a
health care practitioner. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.102.htm and
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.104.htm.
108
TMB Rules, Chapter 164 Physician Advertising, provides guidance to APRNs that wish to
advertise. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=22&pt=9&ch=164&rl=Y.
Chapter 7
109
Texas Midwifery Board licenses midwives who are not CNMs. Accessed:
www.dshs.state.tx.us/midwife/default.shtm.
110
Medline Plus Medical Encyclopedia on Certified Nurse-Midwife Profession. Accessed:
http://www.nlm.nih.gov/medlineplus/ency/article/002000.htm.
Public Citizen’s Health Research Group. (1995). Nurse Midwives: Delivering a Better
Childbirth Experience. For more information on obtaining this report,
111
http://www.citizen.org/publications/release.cfm?ID=6934
112
List of CNM programs in the US accredited by ACME. Accessed:
http://www.midwife.org/eduprog_all.cfm.
113
ACNM. Position Paper on Mandatory Degree Requirements for Midwifery Education.
Accessed:
http://www.midwife.org/siteFiles/position/Mandatory_Degree_Req_for_Entry_Midwifery_Practice_
7_09.pdf.
114
ACNM. Standard-Setting Documents. Accessed:
http://www.midwife.org/standard_setting.cfm?CFID=2715616&CFTOKEN=95978306.
115
ACNM.(July 24, 2008). QuickInfo: Scope of Practice. Accessed:
http://www.midwife.org/siteFiles/education/Scope_of_Practice_7_08.pdf. This document also
includes an important statement regarding Clinical Practice Guidelines required by Standard V.
116
ACNM Position Statement affirming that ACNM does not support requirements to sign
collaborative agreements. Accessed:
http://www.midwife.org/siteFiles/position/Requirements_for_Signed_Collaborative_Agreements_4
.06.pdf.
ACNM documents on adding new procedures to the CNM’s scope of practice. Standard VIII
may be accessed at http://www.midwife.org/display.cfm?id=485. ACNM Position Statement,
Expansion of Midwifery Practice and Skills Beyond Basic Core competencies. Accessed:
http://www.midwife.org/siteFiles/position/Expansion_of_Mid_Prac_05.pdf.
117
317
118
BON. Guidelines for Determining APRN Scoipe of Practice. Accessed:
http://www.bon.state.tx.us/practice/APN-scopeofpractice.html.
119
RNFA educational programs may be accessed on the CCI Website. Accessed: http://www.ccinstitute.org/cert_crnf_prep_rnfa.aspx. First Assisting courses for CNMs to first assist for
cesarean section may be accessed at http://www.midwife.org/ceu_calendar.cfm.
120
ACNM. QuickInfo: Ultrasonography. Accessed:
http://www.acnm.org/siteFiles/education/ultrasound_7_08.pdf.
121
BON. Position Statement: Nurses Carrying Out Orders from Advanced practice registered
nurses. Accessed: http://www.bon.state.tx.us/practice/position.html#15.18.
42 CFR §410.32(a)(3) is the federal rule affirming APRNs may order diagnostic tests.
Accessed: http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr410_08.html.
122
§192.003, Health & Safety Code. Requirements for filing a birth certificate. Accessed:
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.192.htm#192.003.
123
124
DSHS Texas Electronic Registrar Birth Registration Facility User Guide. Accessed:
https://www.dshs.state.tx.us/vs/handbooks/birth/terbirthmanual.shtm.
125
DSHS. Obtaining Parental Consent During Birth Registration Using Texas Electronic
Registrar. This ImmTrac document is required by law. It must be signed by parents and retained
in patient’s records. Accessed: http://www.dshs.state.tx.us/immunize/immtrac/imm_birth.shtm.
DSHS. ImmTrac Newborn Registration: “Affirming” Parental Consent. Accessed:
http://www.dshs.state.tx.us/immunize/docs/BirthReg/regform.pdf.
DSHS rule on certificate of fetal death, 25 TAC §181.7, Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=25&pt=1&ch=181&rl=7.
126
127
DSHS Form & Literature Inquiry and Order Entry System. Accessed:
http://webds.dshs.state.tx.us/mamd/litcat/default.asp.
128
DSHS Newborn Screening Homepage. Accessed:
https://www.dshs.state.tx.us/newborn/default.shtm.
129
DSHS Newborn Hearing Screening Webpage. Accessed:
http://www.dshs.state.tx.us/audio/newbornhear.shtm.
130
DSHS. Texas Birth Defects Epidemiology & Surveillance webpage contains information on the
birth defects surveillance program. Accessed:
http://www.dshs.state.tx.us/birthdefects/default.shtm.
131
DSHS. Infectious Disease Control Unit webpage contains information on disease reporting
and infectious diseases. Accessed: http://www.dshs.state.tx.us/idcu/.
132
DSHS. (2003). Parental Consent for Services. This list of public funding sources that do not
require parental consent for family planning services. Accessed:
http://www.dshs.state.tx.us/famplan/contractor/rider13.shtm.
133
DSHS. (2004). Medical Checkups for Adolscents: Consent for Medical and Mental Health
Care of a Minor. Accessed: http://www.dshs.state.tx.us/adolescent/consent%20providers2003.shtm.
ACNM. Letter to Dr. Douglas Laube. (November 20, 2006). ACNM’s response to ACOG’s
position supporting in-hospital birth as the safest for women. Accessed:
http://www.midwife.org/siteFiles/education/ACNMACOGletter11212206.pdf.
134
135
World Health Organization (1996). Care in Normal Birth: A Practical Guide. Accessed:
http://whqlibdoc.who.int/hq/1996/WHO_FRH_MSM_96.24.pdf.
318
136
ACNM Position Statement on Home Birth. The statement supporting home and other out-ofhospital birth settings. Accessed:
http://www.midwife.org/siteFiles/position/Approp_Use_of_Tech_05.pdf.
137
25 TAC Chapter 137. Birthing Centers. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=25&pt=1&ch=137.
138
TDI Standardized Credentialing Application form and instructions. Accessed:
http://www.tdi.state.tx.us/hprovider/index.html.
139
ACNM. Clinical Privileges and Credentialing Handbook. Accessed:
http://www.shopacnm.com/clinprivhan.html. Credentialing and Medical Staff Privileging Resource
for ACNM members. Accessed: http://www.midwife.org/members_only.cfm.
140
Texas Insurance Code citations regarding APRNs. Accessed:
http://www.statutes.legis.state.tx.us/. APRN language in HMO Act, §843.312. Accessed:
http://www.statutes.legis.state.tx.us/Docs/IN/htm/IN.843.htm#843.312.
APRN language in PPO Act, §1301.052. Accessed:
http://www.statutes.legis.state.tx.us/Docs/IN/htm/IN.1301.htm#1301.052.
42 CFR §440.165 is the CMS rule for CNMs. Accessed:
http://www.access.gpo.gov/nara/cfr/waisidx_08/42cfr440_08.html.
141
142
1 TAC Chapter 354, Divisions 5, 16 and 17 are Medicaid provider rules that impact CNMs.
Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=1&pt=15&ch=354&sch=A.
1 TAC Chapter 355, Divisions 9 and 10 impact CNMs. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=1&pt=15&ch=355&sch=J.
143
DSHS County Indigent Health Care Program. Accessed:
http://www.dshs.state.tx.us/cihcp/default.shtm.
144
HHSC Chip Perinatal webpage. Accessed:
http://www.hhsc.state.tx.us/chip/perinatal/index.htm.
145
Slager, J. (2004) Business Concepts for Healthcare Providers: A Quick Reference for
Midwives, PAs, NPs and other Disruptive Innovators. Jones & Bartlett, Sudbury, MA.
146
Advance for Nurse Practitioners. (2008). 2007 Nurse Practitioner Salary Survey. Accessed:
http://nurse-practitioners.advanceweb.com/article/2007-salary-survey-results-a-decade-of-growth3.aspx.
NP Central. Salary Data, Employment Contract Template and and many other supports.
Accessed http://www.nurse.net/cgi-bin/start.cgi/salary/index.html.
§157.060, Occupations Code. Physcian Liability. States physician not liable just because the
physician delegated Rx authority. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.157.htm#157.060. Same language is in
TMB Rule, 22 TAC §193.6(m).Liability. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=193&rl=6.
147
148
Booth, J. W. & Div, M. (2007). An update on vicarious liability for certified nursemidwives/certified midwives. Journal of Midwifery & Women’s Health. 52 (2), 154-157. Accessed:
http://www.acnm.org/siteFiles/education/Booth_JMWH_52.2.pdf.
§2.003 – 2.004, Business Organizations Code. Prevents a business from engaging in more
than one profession. Accessed: http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.2.htm.
149
319
150
TMB. Corporate Practice of Medicine. Prohibits other professionals or entities from employing
a physician or owning a medical practice with a physician. Accessed:
http://www.tmb.state.tx.us/professionals/physicians/licensed/cpq.php.
§102.001 – 054, Occupations Code. Statuory provisions that apply to all health care providers
prohibits soliciting patients but allows advertising. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.102.htm. APRNs can refer to TMB Rules,
Chapter 164 for further guidance on appropriate advertising. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=22&pt=9&ch=164&rl=Y.
151
Chapter 8
152
BON Mission Statement. Accessed: www.bon.state.tx.us.
153
BON. News for Consumers: Our Mission. Accessed:
http://www.bon.state.tx.us/about/consumernews.html.
154
Board of Nurse Examiners for the State of Texas (June 23, 2006). Historical and projected
enforcement statistics for 1999-2007. Strategic Plan for Fiscal Years 2007-11. Appendix C, pp. 60
or 125. Accessed: http://www.bon.state.tx.us/about/pdfs/strat06.pdf.
155
Board of Nurse Examiners for the State of Texas (June 23, 2006). Organizational Chart.
Strategic Plan for Fiscal Years 2007-11. Appendix B, pp 56 or 125. Accessed:
http://www.bon.state.tx.us/about/pdfs/strat06.pdf,.
156
Legislative Budget Board (2007). Article VIII, Appropriations Bill, VIII pp. 45 & 46. Accessed:
http://www.lbb.state.tx.us/Bill_80/8_FSU/80-8_FSU_1007_Art4_thru_Art8.pdf.
157
Board of Nurse Examiners for the State of Texas (June 23, 2006). Agency goals. Strategic
Plan for Fiscal Years 2007-11. Goal B, pp 54 of 125. Accessed:
http://www.bon.state.tx.us/about/pdfs/strat06.pdf.
158
Board of Nurse Examiners for the State of Texas (June 23, 2006). Historical and projected
enforcement statistics for 1999-2007. Strategic Plan for Fiscal Years 2007-11. Appendix C, pp 60
of 125. Accessed: http://www.bon.state.tx.us/about/pdfs/strat06.pdf,.
BON Rule §213.13(d). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=T&app=9&p_dir=N&p_rloc=134606&p
_tloc=&p_ploc=1&pg=13&p_tac=&ti=22&pt=11&ch=213&rl=1.
159
160
BON Disciplinary Sanction Policies. Accessed:
http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
161
BON. Position Statement 15.22. APRNs providing medical aspects of care for themselves or
others with whom there is a close personal relationship. Accessed:
http://www.bon.state.tx.us/practice/position.html#15.22.
162
BON. Renewal Webpage. Contains statements explaining the convictions that must be
disclosed. Accessed at http://www.bon.state.tx.us/olv/renewals.html.
163
BON. Complaint Process. Accessed: http://www.bon.state.tx.us/about/complaint.html.
§301.403, Texas Occupations Code. Duty of Peer Review Committee to Report, §301.404,
Duty of Nursing Educational Program to Report, and §301.405, Duty of Person Employing Nurse
to Report, and §301.407 Duty of State Agency to Report. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.403.
164
Texas Occupations Code. §301.408, Duty of Liability Insurer to Report. Last accessed on
June 8, 2008 at
http://tlo2.tlc.state.tx.us/statutes/docs/OC/content/htm/oc.003.00.000301.00.htm#301.408.00.
165
320
Texas Occupations Code. §301.408, Duty of Liability Insurer to Report. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.408.
166
§301.405, Occupations Code, and BON Rule 217.19 address peer review committee
responsibilities to report to the BON and patient safety committee. BON Rule 217.19. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=217&rl=19.
167
§303.001(4), Occupations Code. Definition of “peer review committee” lists persons or entities
required to form a committee. §303.0015 specifies the employment threshold that triggers the
requirement to form nursing peer review committees for vocational and professional nurses.
Accessed: http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm.
168
§303.001(5), Occupations Code. Defines “peer review.” Accessed
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm. §303.011. Evaluation and reports
by a peer review committee. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm#303.011. §301.405, Occupations
Code, and BON Rule 217.19 also address peer review committee responsibilities to report to the
BON and patient safety committee. BON Rule 217.19. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=217&rl=19.
169
§303.003, Occupations Code, Committee Membership. Last accessed on July 31, 2008, at
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm#303.003.
170
§303.002(e), Occupations Code. Confirms the minimum due process rights for nurses
undergoing peer review. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm#303.002. §303.008 confirms
rights of rebuttal. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.303.htm#303.008.
171
§301.405(b), Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.405.
172
173
BON. Safe Harbor information. Accessed:
http://www.bon.state.tx.us/practice/gen_practice.html#Peer_Review.
174
Personal email communication Carol Marshall, BON Nursing Practice Consultant, dated
August 20, 2008.
§301.419(c), Occupations Code. Requires the BON to remove any complaints from a nurse’s
file if the case was closed. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.419.
175
176
BON. Frequently Asked Questions About Enforcement, Investigatory & Disciplinary Process,
and What To Do if You are Under Investifation. Accessed
http://www.bon.state.tx.us/disciplinaryaction/.
177
Mackay, T. (February 19, 2008). Texas Nursing Board Attorney.
178
State Bar of Texas. Verify credentials of an attorney and find other guidance on selecting an
attorney. Accessed:
http://www.texasbar.com/Template.cfm?Section=Selecting_a_Lawyer&Template=/TaggedPage/T
aggedPageDisplay.cfm&TPLID=36&ContentID=2490.
Texas Medical Liability Trust. (April 2008) Understanding the Texas Medical Board – a
resource for physicians. Accessed: http://www.tmlt.org/images/TMB_publication.pdf.
179
180
BON. Investigatory & Disciplinary Process. Accessed:
http://www.bon.state.tx.us/disciplinaryaction/pdfs/invest.pdf .
321
BON Rule §213.13(d). Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=T&app=9&p_dir=P&p_rloc=95951&p_tl
oc=&p_ploc=1&pg=2&p_tac=&ti=22&pt=11&ch=213&rl=14
181
BON Rule §213.14. Preliminary Notice to Respondent in Disciplinary Matters. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=14.
182
§301.455, Texas Occupations Code. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.455.
183
BON Rule §213.9. Computation of Time. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=T&app=9&p_dir=P&p_rloc=111335&p
_tloc=&p_ploc=1&pg=11&p_tac=&ti=22&pt=11&ch=213&rl=9.
184
BON Rule §213.16(d). Respondent’s Answer in a Disciplinary Matter. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=16.
185
§301.504, Occupations Code. Nurse must accept the penalty or request a hearing in writing.
Accessed: http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.504.
186
187
BON Rule 213.15. Disciplinary proceedings begin with filing of formal charges. Lists
information that must be included in formal charges. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=15.
188
The Administrative Procedure Act (APA). Accessed:
http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2001.htm.
State Office of Administrative Hearings (SOAH) Rules. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=1&pt=7.
189
BON Rule 213.23(d). Outlines the grounds upon which the BON may change or vacate a
proposal for decision issued by an administrative law judge. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=23.
§301.555, Occupations Code. Rights to appeal a final decision by the Board in district court.
Accessed: http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.555. .
190
§301.452(d), Occupations Code. Board obliged to establish guidelines for the fair and
consistent application of arrest and conviction information. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.452.
191
§301.415, Occupations Code. Right to written rebuttal of statements in a report. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.415.
192
§301.460, Occupations Code, Access to Information. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.460.
193
194
BON Disciplinary Matrix was last access on August 11, 2008, at
http://www.bon.state.tx.us/disciplinaryaction/discp-matrix.html.
195
BON Rule 213.25(b). All monitored licensees pay a monthly fee and the fee is included in the
Board Order. Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=25.
BON Rule 213.23(g). A copy of the Board Order will be sent to all parties and the respondent’s
last know employer. Accessed:
196
322
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=23.
§301.502, Occupations Code. Maximum penalty amount is $5,000. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.502.
197
§301.468, Occupations Code. BON’s authority to probate license suspension. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.468.
198
199
BON Rule 213.24. Rescission of Probation, Accessed:
http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p
_ploc=&pg=1&p_tac=&ti=22&pt=11&ch=213&rl=24.
§301.462, Occupations Code. Nurse may voluntarily surrender the nursing license.
Accessed: http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.462.
200
201
BON. Disciplinary action notices. Accessed:
www.bon.state.tx.us/disciplinaryaction/recentaction.html.
202
SB 1415 (2009). BON may take corrective action or defer disciplinary action. Accessed
http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/SB01415F.pdf.
203
Chapter 467, Health & Safety Code. Peer Assistance Programs. Accessed:
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.467.htm.
§301.452(a), Occupations Code. Defines “intemperate use”. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.301.htm#301.452.
204
205
TPAPN Referral Documentation form. Accessed:
http://www.texasnurses.org/associations/8080/files/TPAPN_referral.pdf.
206
TPAPN. (June 2008). Participant Handbook, p 8. Accessed:
http://www.texasnurses.org/associations/8080/files/TPAPN-13.pdf.
207
Buppert, C. (2008). How a seemingly innocuous act can lead to loss of license. Journal for
Nurse Practitioners, 4(4), 251-252. Accessed: http://www.medscape.com/viewarticle/576065.
Chapter 9
208
American Tort Reform Association. Accessed:
http://www.atra.org/issues/index.php?issue=7338.
209
Joint Economic Committee (2005). Accessed: http://www.house.gov/jec/publications/109/0321-05.pdf.
210
Joint Economic Committee (2003). Accessed: http://www.house.gov/jec/tort/05-06-03.pdf.
211
Guido, G.W. (2006) Legal & Ethical Issues in Nursing (4th Ed). Pearson E., Inc.
212
Quillin, Edward (personal communication, October 3, 2006)
213
Roche, B.A. (2004) Law 101. Sphinx Publishing.
214
Mueller, J. (2001). Risk Management 101. TMLT Reporter. .
215
Leidig. D. & Brockway, L. (2004) 25 Years of Closed Claim Studies. Texas Medical Liability
Trust.
216
217
Gifis, S.H. (2003) Law Dictionary (5th ed)
Aidman, E.K. (2005) Winning Your Personal Injury Claim (3rd Ed).
§157.060 Texas Occupations Code. Physician Liability for Delegated Act. Accessed:
http://www.statutes.legis.state.tx.us/Docs/OC/htm/OC.157.htm#157.060.
218
323
219
Hull, M.S. et al. Texas Tech Law REview (2005). House Bill 4 and Proposition 12: An Analysis
with Legislative History. Vol 36, Supplement.
220
Fields, B. (July/August 2003) TMLT Perspective: Tort Reform Legislation. Accessed:
http://www.tmlt.org/publications/resources/Reporter/JulyAugust2003.pdf.
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