Can a nurse anesthetist administer anesthesia in Texas without a physician delegating it?

Plain-English summary

Anesthesia in Texas is often given by a certified registered nurse anesthetist (CRNA) rather than directly by a physician, and the line between what counts as nursing and what counts as the practice of medicine has practical consequences for licensing and discipline. The president of the Texas Medical Board asked the AG three related questions, building on a 1999 opinion (JC-0117) that had addressed similar ground from the nursing board's side.

The first question was whether providing anesthesia is the practice of medicine. The AG said yes in the general sense: anesthesiology is a branch of medicine, the Occupations Code's Medical Practice Act defines practicing medicine broadly, and chapter 162 even has a subchapter on anesthesia in outpatient settings, all pointing to anesthesia as part of the practice of medicine when a physician provides it. But the Medical Practice Act expressly carves out other licensed professionals acting strictly within their own licenses, including registered nurses. The Legislature's definition of "professional nursing" includes performing an act delegated by a physician under section 157.058, and that section lets a physician in a licensed hospital or ambulatory surgical center delegate to a CRNA the ordering of drugs and devices needed to administer anesthesia the physician ordered. So when a CRNA administers anesthesia under a physician's delegation, the AG concluded that act falls within professional nursing, not the practice of medicine.

The second question was whether the Texas Medical Board can regulate a physician's decision to delegate anesthesia to a CRNA. The AG distinguished this from the older supervision question in JC-0117. The Legislature limited a physician's liability for a delegate's acts when the physician signs a standing order, but that protection drops away if the physician has reason to believe the nurse lacked the competency to perform the act. And the Legislature authorized the Board to take disciplinary action against a physician who delegates professional medical acts to a person the physician knows or should know is unqualified. From that, the AG concluded the Board does have regulatory authority over the physician's delegation decision. The third question was whether a CRNA can administer anesthesia with no physician delegation at all. The AG said no: professional nursing includes anesthesia only when delegated by a physician under section 157.058, the definition excludes acts of medical diagnosis or prescribing, and nothing in the Nurse Practice Act grants independent anesthesia authority.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Medical Board and physicians: At the time of the opinion, the AG read the Occupations Code to give the Board regulatory authority over a physician's decision to delegate anesthesia to a CRNA, grounded in the Board's power to discipline a physician who delegates to someone the physician knows or should know is unqualified. The opinion also noted the statutory liability shield for signing standing orders does not protect a physician who has reason to believe the delegate lacks competency.

Nurse anesthetists and hospitals: The opinion described a CRNA's anesthesia work as professional nursing when, and only when, a physician delegates it under section 157.058. It stated that a CRNA does not have independent authority to administer anesthesia without a physician's delegation, and that the delegation authority applies in a licensed hospital or ambulatory surgical center.

Health-care facility administrators: The opinion tied the delegation to facility policies and medical staff bylaws, noting that under section 157.058 the CRNA acts pursuant to the physician's order and in accordance with those facility rules.

Common questions

Is giving anesthesia considered practicing medicine in Texas? When a physician provides it, yes. The AG described anesthesiology as a branch of medicine within the Medical Practice Act. But when a CRNA administers anesthesia under a physician's delegation, the opinion placed that act within professional nursing instead.

Can a nurse anesthetist work without a doctor's involvement? No. The AG concluded a CRNA does not have independent authority to administer anesthesia without delegation by a physician under section 157.058.

Can the Texas Medical Board discipline a doctor over how they delegate anesthesia? Yes. The opinion said the Legislature authorized the Board to take disciplinary action against a physician who delegates professional medical acts to a person the physician knows or should know is unqualified.

Does signing a standing order protect a physician from liability for the nurse's work? Partly. The opinion noted section 157.060 limits a physician's liability for a delegate's act based solely on signing a standing order, but that protection does not apply if the physician has reason to believe the nurse lacked the competency to perform the act.

Background and statutory framework

Title 3, subtitle B of the Occupations Code is the Medical Practice Act, and section 151.002(a)(13) defines "practicing medicine" broadly. The opinion supported treating anesthesia as part of the practice of medicine by pointing to chapter 162's outpatient-anesthesia subchapter (sections 162.101-.107) and to Denton Regional Medical Center v. LaCroix, which described the practice of anesthesia as a specialized practice of medicine by a physician. The AG noted that scopes of practice between regulated professions sometimes overlap (citing KP-0082 and DM-443), and that section 151.052(a) excludes from the Medical Practice Act other licensed professionals acting strictly within their licenses, including registered nurses under subsection 151.052(a)(4).

The definition of "professional nursing" in section 301.002(2) includes, at subsection (2)(G), performing an act delegated by a physician under section 157.058, while excluding medical diagnosis and prescribing. Section 157.058 authorizes physician delegation to a CRNA in a licensed hospital or ambulatory surgical center and directs that it be liberally construed; sections 301.601-.607 set standards for outpatient CRNA anesthesia services. On Board authority, section 157.060 limits physician liability for a delegate's acts but withdraws that limit where the physician has reason to believe the delegate lacked competency, and sections 164.051(a), 164.052(a)(5), and 164.053(a)(9) authorize Board discipline of a physician who delegates to an unqualified person. The AG relied throughout on JC-0117 (1999), which had recognized that CRNA selection and administration of anesthesia is professional nursing only when delegated by a physician.

Citations

Statutes and codes:

• Tex. Occ. Code §§ 151.001-170.003; § 151.001; § 151.002(a)(13); § 151.052(a)(1)-(7), (a)(4); §§ 162.101-.107; § 157.058, (a), (c); § 157.060; §§ 164.051(a), .052(a)(5), .053(a)(9); § 301.002(2), (2)(G); §§ 301.601-.607

Cases:

• Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 943 (Tex. App.-Fort Worth 1997, pet. dism'd by agr.)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0117 (1999)
• Tex. Att'y Gen. Op. No. KP-0082 (2016)
• Tex. Att'y Gen. Op. No. DM-443 (1997)

Secondary authority:

• Taber's Cyclopedic Medical Dictionary 113 (20th ed. 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0266
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0266.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 5, 2019

Sherif Zaafran, M.D.
Opinion No. KP-0266
President
Texas Medical Board
Re: Regulatory authority over the administration
Post Office Box 2018
of anesthesia when delegated by a physician to a
Austin, Texas 78768-2018
nurse anesthetist (RQ-0278-KP)

Dear Dr. Zaafran:

You ask multiple questions regarding the regulation of a physician who delegates the administration of anesthesia to a nurse anesthetist.1 This office previously addressed similar questions in Attorney General Opinion JC-0117, responding to a request from the Board of Nurse Examiners. See Tex. Att'y Gen. Op. No. JC-0117 (1999) at 10. The relevant law has not changed significantly in the intervening twenty years, but your questions differ to some extent from those raised in the prior opinion. We therefore consider the law in light of your specific questions.

You first ask: "Is providing anesthesia the practice of medicine?" Request Letter at 1. Title 3, subtitle B of the Occupations Code, titled the "Medical Practice Act," governs the practice of medicine in Texas. See generally TEX. OCC. CODE §§ 151.001-170.003; see id. § 151.001 (defining Title 3, subtitle B of the Occupations Code as "the Medical Practice Act"). Subsection 151.002(a)(13) of the Occupations Code defines "practicing medicine" as "the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions . . . ." Id.
§ 151.002(a)(13). Anesthesiology is commonly understood as the "branch of medicine concerned with the control of acute or chronic pain . . . ." TABER'S CYCLOPEDIC MED. DICTIONARY 113 (20th ed. 2005). Furthermore, chapter 162 of the Occupations Code, titled "Regulation of Practice of Medicine," includes a subchapter devoted to the provision of anesthesia in an outpatient setting, suggesting that the Legislature understood the practice of medicine to encompass providing and administering anesthesia. See TEX. OCC. CODE §§ 162.101-.107; see also Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 943 (Tex. App.-Fort Worth 1997, pet. dism'd by agr.) (finding that "the practice of anesthesia is a specialized practice of medicine by a physician").

Yet, as recognized in previous opinions from this office, the scope of practice between regulated professions sometimes overlaps. See, e.g., Tex. Att'y Gen. Op. Nos. KP-0082 (2016) at 1 (recognizing practices of physical therapy and acupuncture sometimes overlap); DM-443 (1997) at 1-3 (recognizing the same regarding practices of physical therapy and medicine). The Legislature expressly excluded from the Medical Practice Act other licensed health care professionals "engaged strictly" in the scope of their licensed professions. See TEX. OCC. CODE § 151.052(a)(1)-(7). Relevant to your question, subsection 151.052(a)(4) provides that the Medical Practice Act does not apply to "a registered nurse or licensed vocational nurse engaged strictly in the practice of nursing in accordance with the applicable licensing acts and other laws of this state." Id. § 151.052(a)(4).

The Legislature defines "professional nursing" as:

[T]he performance of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures. Professional nursing involves:

(G) the performance of an act delegated by a physician under Section ... 157.058 ....

Id. § 301.002(2)(G). Subsection 157.058(a) authorizes a physician in a licensed hospital or ambulatory surgical center to "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." Id. § 157.058(a); see also id. §§ 301.601-.607 (providing standards for anesthesia services provided by a certified registered nurse anesthetist in an outpatient setting). When delegated that authority, "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." Id. § 157.058(c). Thus, pursuant to subsection 301.002(2)(G), when a certified registered nurse anesthetist administers anesthesia pursuant to a physician's delegation, such act falls within the scope of professional nursing, not the practice of medicine.2 See Tex. Att'y Gen. Op. No. JC-0117 (1999) at 5 (recognizing that selection and administration of anesthesia is within the scope of practice of professional nursing when those tasks are delegated by a physician).

You also ask whether the Texas Medical Board possesses regulatory authority over a physician's decision to delegate the providing and administration of anesthesia to a certified registered nurse anesthetist. Request Letter at 1. Opinion JC-0117 addressed whether section 157.058 requires a physician to directly supervise a certified registered nurse anesthetist's provision of anesthesia and concluded that a physician is not required to do so. Tex. Att'y Gen. Op. No. JC-0117 (1999) at 7. In contrast, you ask not about the supervisory role a physician exercises over a certified registered nurse anesthetist to whom the doctor has made a delegation but about the regulatory role the Texas Medical Board exercises over the physician's decision to delegate. Request Letter at 1.

As discussed above, the Legislature provides clear authority for a physician to delegate the administration of anesthesia in certain circumstances:

(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.

(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.

TEX. OCC. CODE § 157.058. Furthermore, section 157.060 of the Occupations Code limits a physician's liability "for an act of [an] ... advanced practice registered nurse solely because the physician signed a standing medical order [and a] standing delegation order ... authorizing the ... advanced practice registered nurse to administer, provide, prescribe, or order a drug or device." Id. § 157.060. However, that limitation on liability does not apply if "the physician has reason to believe the ... advanced practice registered nurse lacked the competency to perform the act." Id. The Legislature authorized the Texas Medical Board to "take disciplinary action" against a physician who delegates professional medical acts to a person whom the physician knows or should know is unqualified to perform the acts. See id. §§ 164.051(a), .052(a)(5), .053(a)(9). Thus, the Medical Board possesses regulatory authority over a physician's decision to delegate the providing and administration of anesthesia to a certified registered nurse anesthetist.

In your final question, you ask whether a certified registered nurse anesthetist has "independent authority to administer anesthesia without delegation by a physician." Request Letter at 1. As discussed above, "professional nursing" includes the administration of anesthesia when delegated by a physician pursuant to section 157.058 of the Occupations Code. TEX. OCC. CODE § 301.002(2)(G). The Legislature's definition specifically excludes from the scope of nursing the "acts of medical diagnosis or the prescription of therapeutic or corrective measures," and no other provision within the Nurse Practice Act provides authority otherwise. Id.
§ 301.002(2). Thus, a certified registered nurse anesthetist does not possess independent authority to administer anesthesia without delegation by a physician. See Tex. Att'y Gen. Op. No. JC-0117 (1999) at 1 ("[T]he practice of professional nursing includes the selection and administration of anesthesia and the care of an anesthetized patient by a CRNA, but only when those tasks are delegated by a physician.").

SUMMARY

The practice of medicine includes the provision of anesthesia by a licensed physician. However, pursuant to subsection 301.002(2)(G) of the Occupations Code, when a certified registered nurse anesthetist administers anesthesia pursuant to a physician's delegation, such act falls within the scope of professional nursing.

The Legislature authorized the Texas Medical Board to take disciplinary action against a physician who delegates professional medical acts to a person whom the physician knows or should know is unqualified to perform the acts. Thus, the Board possesses regulatory authority over a physician's decision to delegate the providing and administration of anesthesia to a certified registered nurse anesthetist.

A certified registered nurse anesthetist does not possess independent authority to administer anesthesia without delegation by a physician.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

1See Letter from Sherif Zaafran, M.D., President, Tex. Med. Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 26, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2Briefing submitted on behalf of the Texas Medical Association and the Texas Society of Anesthesiologists takes a position consistent with this conclusion. See Brief from Gerald Ray Callas, M.D., President, Tex. Soc'y of Anesthesiologists & Douglas W. Curran, M.D., President, Tex. Med. Ass'n, to Virginia K. Hoelscher, Chair, Op. Comm. at 6 (Apr. 24, 2019) (on file with the Op. Comm.).