STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6545

November 3, 1988

PHYSICIANS AND SURGEONS:

Limitation upon number of physician's assistants to be supervised or employed by a doctor of medicine or osteopathic medicine and surgery

WORDS AND PHRASES:

"At one time"

Neither the Board of Medicine nor the Board of Osteopathic Medicine and Surgery is authorized to approve a doctor of medicine or a doctor of osteopathic medicine and surgery to supervise or employ more than two physician's assistants.

Raymond W. Hood, Sr.

Director

Department of Licensing and Regulation

Ottawa Building North

Lansing, Michigan 48909

You have requested my opinion on the following question as it relates to supervision and employment of physician's assistants as provided in the Public Health Code, 1978 PA 368, as amended; MCL 333.1101 et seq; MSA 14.15(1101) et seq:

In order to respond to your question, reference is made to Act 368, Sec. 17048(1), which pertains to doctors of medicine, and Act 368, Sec. 17548(1), which pertains to doctors of osteopathic medicine and surgery, which provide in identical language as follows:

Before a medical doctor or an osteopathic physician may supervise or employ a physician's assistant, approval by the Board of Medicine or Board of Osteopathic Medicine and Surgery is required by Act 368, Secs. 17040(1) or 17540(1), respectively.

Act 368, Sec. 1111(2), states: "This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state." The court stated in Nolan v Dep't of Licensing & Regulation, 151 Mich App 641, 650; 391 NW2d 424 (1986): "The purpose of the statutes regulating health care professions is to safeguard the public health and protect the public from incompetence, deception and fraud." Canons of statutory construction command that a clause being interpreted shall be read in conjunction with other pertinent provisions, and a meaning shall be given thereto consistent with the general purpose sought to be accomplished. Roberts Tobacco Co v. Dep't of Revenue, 322 Mich 519, 530; 34 NW2d 54 (1948), Simmons v. Marlette Bd of Education, 73 Mich App 1, 5; 250 NW2d 777 (1976).

Pursuant to Act 368, Secs. 17048(1) and 17548(1), while either a physician or a health care institution may employ physician's assistants, only a physician may secure board approval to supervise a physician's assistant.

As noted by the Nolan court, supra, the purpose of health care legislation is to safeguard and protect the public health. Since the practice of a physician's assistant is statutorily defined in Act 368, Secs. 17001(1)(d) and 17501(1)(d), as the practice of medicine or osteopathic medicine and surgery performed under the supervision of a physician licensed and approved, a limiting interpretation, rather than a more expansive one, of the phrase "at 1 time" appears most consistent with promoting and protecting the public health. Further, in the case of ambiguity, the underlying legislative intent concerning the phrase "at 1 time" may be discerned through the provision's legislative history. Luttrell v. Dep't of Corrections, 421 Mich 93, 103; 365 NW2d 74 (1984).

The present language of Act 368, Secs. 17048(1) and 17548(1), had its genesis in 1973 PA 185, Sec. 25(1), as amended by 1976 PA 421 [medicine], and 1903 PA 162, Sec. 19(1), as amended by 1976 PA 407 [osteopathy], respectively, which amendatory acts were both tie-barred to 1976 PA 420, an act which regulated the qualifications and licensure of physician's assistants. ⁽¹⁾ As enacted, both predecessor provisions [1973 PA 185, Sec. 25(1), and 1903 PA 162, Sec. 19(1) ] stated:

This language, as it appeared in 1976 HB 6079 and HB 6081, which respectively became 1976 PA 407 and 421, was not changed by the Legislature in its deliberations. The House Legislative Analysis, HB 6081, March 15, 1976, states:

This statement was repeated verbatim in a second analysis contained in House Legislative Analysis, HB 6081, December 29, 1976. It is noteworthy that the second analysis, in a section entitled "The Manner in Which the Bill Addresses Itself to the Problem," contains an extended discussion on the importance and specifics of physician supervision of physician's assistants in the provision of medical care services. In a section entitled "Argument For," it is stated: "A new statute is necessary to regulate physician's assistants and to establish guidelines for physician's assistants, including their relationship to doctors and to other practitioners in a medical field." Additional "Argument[s] For" include: "A physician's assistant is a skilled person who can provide high quality medical care under the supervision of a licensed physician"; "Supervision will be the key mechanism for regulating and monitoring"; after discussing the components of "supervision": "A physician could not supervise a physician's assistant without first obtaining written approval from the Medical Practice Board and could not supervise more than 2 physician's assistants." (Emphasis added.)

Upon review of the legislative history of the phrase "[a] physician shall neither supervise nor employ more than 2 physician's assistants at 1 time," the two bill analyses make evident the Legislature's intent under the predecessor acts and the present provisions of Act 368 that in all medical settings: (1) physician's assistants be effectively supervised by the approved physician, and (2) a limitation of the number of physician's assistants a physician may supervise or employ at one time--not more than two--was contemplated. This intent supports a limited, rather than a more expansive, interpretation of Act 368, Secs. 17048(1) and 17548(1). Based on the Legislature's articulated concern over effective supervision of physician's assistants in promoting and protecting the public health, both before and after enactment of Act 368, there is nothing to suggest that the Legislature intended a licensing board to authorize a physician to supervise or employ more than two physician's assistants at the same time in any setting. Cf. Luttrell, 421 Mich at 103-105. Further, the almost verbatim re-enactment of the limiting language of the pre-Code statutes in Act 368 indicates there is no change in meaning as gleaned from the legislative history of amendatory 1976 PA 407 and 421.

The phrase "at 1 time" contained in both sections emphasizes the legislative limitation placed upon a physician's utilization of physician's assistants. The physician may not utilize more than two physician's assistants at one time whether that utilization is either in an employment relationship or supervisory capacity (clinic or other described health care organization). Further, Act 368, Secs. 17040(1) and 17540(1), require physicians to obtain board approval before supervising or employing a physician's assistant in any context.

The Boards of Medicine and Osteopathic Medicine and Surgery have administratively interpreted their statutory authority under the prior legislation and Act 368 as limiting approvals to supervise a physician's assistant to not more than two per doctor. This administrative construction by the respective boards is longstanding and persuasive. See Magreta v Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1968).

Reading Act 368, Secs. 17048(1) and 17040(1), and 17548(1) and 17540(1) in conjunction, it would be unlawful for the respective boards to grant approval to a physician to supervise a physician's assistant while that same physician was simultaneously supervising two physician's assistants employed by another doctor, because that physician would be clearly supervising or employing more than two physician's assistants at one time.

Act 368, Secs. 17001(1)(e) and 17501(1)(e), adopt the meaning ascribed to "supervision" in Sec. 16109. It is noted that Sec. 16109(2)(b) requires a supervising physician to be available on a regularly scheduled basis to review the practice of the physician's assistant, to provide consultation to the physician's assistant, to review records, and to further educate the supervised individual in the performance of his or her functions. Many of these supervisory functions are conducted by the physician even though the physician's assistant is not in the act of rendering medical care. Therefore, the supervising physician's responsibility to supervise continues despite the fact that the physician's assistant may not be actively rendering health care to a patient. The utilization of a physician's assistant requires supervision by a physician which goes beyond the specific point in time that the physician's assistant is rendering medical care. The concept of supervision employed in Act 368, Sec. 16109(2), "demonstrates a legislative intent that a physician's assistant work closely with and under the continual scrutiny of a physician." OAG, 1979-1980, No 5630, p 553, 556 (January 22, 1980).

Further, Act 368, Secs. 17001(1)(e) and 17501(1)(e), in tandem with Secs. 17040(2)(e) and (g) and 17540(2)(e) and (g), require the supervising physician to submit to the relevant board a plan for emergency situations designating a licensed physician (doctor of medicine or osteopathic medicine and surgery) to supervise the physician's assistant in the absence of the supervising physician. Thus, a physician may be designated to supervise in such circumstances a physician's assistant who otherwise is supervised by another doctor, subject to the statutory limit of Act 368, Secs. 17048(1) and 17548(1), that not more than two physician's assistants may be supervised by a physician at the same time. Accordingly, a physician would be authorized to directly employ or supervise one physician's assistant and be a "designated" supervisor for another doctor's physician's assistant. However, in whatever medical setting (excepting emergencies), it would be inconsistent with the statutory scheme for a physician to directly supervise or directly employ two physician's assistants and be a "designated" alternate supervisor for another doctor's physician's assistant. It is similarly unlawful in any medical setting (excepting emergencies) for a physician who is not approved to supervise the specific physician's assistant to attempt to do so. Act 368, Secs. 17040(2)(f) and 17540(2)(f). Supervision in the absence of board approval is contrary to the statutory scheme. Act 368, Sec. 17076(1), declares:

E.g., People v Ham-Ying, 142 Mich App 831, 835-836; 371 NW2d 874, lv den 424 Mich 861 (1985).

The Department of Licensing and Regulation, pursuant to statutory authority conferred by Act 368, Secs. 17040(2) and 17540(2), has developed the form "Application to Supervise a Physician's Assistant" (September, 1983), to implement the respective boards' approval duties. Among the data necessary to fulfill the department's statutory obligation, the applying physician must indicate whether he/she currently supervises a physician's assistant and provide each assistant's name. When the application is made in conjunction with another physician, the name of the co-applying physician must be given. Alternate supervisory arrangements for instances when the applicant is absent must be described, along with the name(s) and signature(s) of such alternate(s). The applying physician(s) and the physician's assistant(s) to be supervised must sign the application in order to secure approval by the applicable board. Act 368, Secs. 17046(a) and 17546(a), require the approved supervising physician to apply for an amendment to the approval when "[a] substantial change occurs from the original application with regard to the ... designated alternative physician." Thus, it is evident that when the appropriate board grants its approval (Act 368, Secs. 17047 and 17547), the approval is specific as to the named and approved (and designated alternate) supervising physician and the named physician's assistant(s) to be supervised.

Since the Legislature has deliberately chosen to restrict a physician's supervision or employment of physician's assistants to only two at a time, it is axiomatic that Act 368 would not permit the granting of more than two approvals per physician to supervise a physician's assistant.

It is my opinion, therefore, that neither the Board of Medicine nor the Board of Osteopathic Medicine and Surgery is authorized to approve a doctor of medicine or a doctor of osteopathic medicine and surgery to supervise or employ more than two physician's assistants.

Frank J. Kelley

Attorney General