Texas AG Affirms: Texas is Not an Independent Practice State

On September 5, 2019, Texas Attorney General Ken Paxton issued a written opinion stating nurse anesthetists do not have independent practice authority in Texas. 

The Opinion (Attorney General Opinion KP-0266) addressed regulatory authority over the administration of anesthesia when delegated by a physician to a nurse anesthetist. Attorney general opinions provide written interpretations of existing law. The Opinion addresses the following questions from the Texas Medical Board:

• Is providing anesthesia the practice of medicine?
• Does the Texas Medical Board possess regulatory authority over a physician’s decision to delegate the providing and administration of anesthesia to a certified registered nurse anesthetist? 
• Does a certified registered nurse anesthetist have independent authority to administer anesthesia without delegation by a physician?

Under Texas law, nurse anesthetists practice pursuant to written protocols or authorization developed with a physician when providing medical aspects of care. A physician may delegate to a 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.” This includes selecting, obtaining and administering such drugs.

Addressing whether providing anesthesia constitutes the practice of medicine, the Attorney General recognized that overlapping can occur between the scopes of practice of regulated professions. When nurse anesthetists administer anesthesia under the delegation of a licensed physician, the act would fall within the practice of nursing and not medicine. The Opinion affirmed that the medical board has authority over a physician’s decision to delegate the administration of anesthesia to a nurse anesthetist. Finally, the Opinion addressed whether a nurse anesthetist could administer anesthesia without delegation by a physician. Texas law includes within “professional nursing” the administration of anesthesia if delegated by a physician. Texas law does not include within nursing scope of practice “medical diagnosis or the prescription of therapeutic or corrective measures.” As such, the Opinion states nurse anesthetists lack authority to administer anesthesia unless delegated by a physician. 

The Opinion supports Texas Medical Board guidance on the question of whether nurse anesthetists are authorized to practice independent of physician delegation and supervision. According to the medical board: “No, neither the Medical Practice Act, nor the Nursing Practice Act, authorize independent practice by a CRNA.  Since the selection and administration of anesthesia is a medical act, CRNAs must be properly delegated this act and practice under the supervision of a physician. CRNA’s administering anesthesia without proper delegation and supervision from a physician would be liable for the unlicensed practice of medicine.” See also: AG Opinion Reaffirms No Independent Practice of Anesthesia by CRNAs in Texas. 

ASA applauds Attorney General Paxton’s guidance on this important subject. In 1999, then-Attorney General John Cornyn issued an Opinion that addressed similar questions submitted from the Texas Nursing Board (Attorney General Opinion JC-0117). While the laws governing physician delegation of anesthesia administration to nurse anesthetists have not changed significantly, lawmakers, the public, and lawmakers in other states considering testimony from Texas nurse anesthetists benefit from a current review of the physician involvement requirements which unequivocally state nurse anesthetists do not and cannot practice independently in the state of Texas.