Could Maryland's medical licensing board require physician's assistants to register or be licensed through the board, or could it only regulate what duties doctors delegated to them?

Plain-English summary

Maryland's Board of Medical Examiners asked the Attorney General how far its authority went under §14-304(c) of the Health Occupations Article, which let the Board adopt rules to "delineate the scope" of physicians delegating duties to assistants. The Board had built a two-part regulatory scheme: rules governing which duties could be delegated to a physician's assistant, and a separate "registration" process requiring assistants to apply, pass eligibility criteria, and be approved by the Board before working at all.

The opinion concluded the statute supported only the first half of that scheme. The Board could validly regulate the circumstances under which a physician could delegate duties and how a physician's assistant carried them out, including identifying which duties could never be delegated and which could be delegated to anyone holding a particular credential. But the opinion found that the Board's "registration" requirement functioned as a de facto occupational license for physician's assistants as a class, something the delegation statute did not authorize; the General Assembly had created that kind of licensing scheme by name for other classes of medical personnel, such as cardiac rescue technicians, and had not done so for physician's assistants.

Currency note

This opinion was issued in 1986. 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.

Common questions

Did Maryland's Board of Medical Examiners have the power to decide which medical tasks a doctor could hand off to a physician's assistant?
Yes. The 1986 opinion concluded the Board could regulate the duties delegated to physician's assistants and the conditions under which those duties were carried out, including barring delegation of certain tasks altogether.

Could the Board require every physician's assistant in Maryland to individually register and be approved before practicing, the way a licensing board certifies doctors?
No. The opinion concluded the delegation statute did not authorize the Board to operate what amounted to an occupational licensing scheme for physician's assistants as a group; that kind of direct entry regulation required the General Assembly to act.

Had the Maryland legislature created that kind of licensing scheme for any similar categories of medical personnel?
Yes, according to the opinion. It noted the General Assembly had separately enacted certification requirements for specific groups, including cardiac rescue technicians, aviation trauma technicians, and emergency medical technician-paramedics, but had not done the same for physician's assistants.

Background and statutory framework

HO §14-304 of the Health Occupations Article let an individual perform duties delegated by a licensed physician without needing a separate license, "to the extent permitted by the rules, regulations, and orders of the Board." The statute directed the Board to "adopt rules and regulations to delineate the scope of this section," inviting input from affected individuals and health groups, and required joint rulemaking with another licensing board if a delegated duty overlapped that board's regulated occupation.

The Board's own regulations went further than duty-by-duty rules, defining "physician's assistant" as someone who, after training, registration by the Board, and an approved job description, could perform duties otherwise reserved to a licensed physician, and imposing application and examination requirements akin to licensure. The opinion reasoned that HO §14-304 protected patient welfare by regulating the performance of delegated duties themselves, and that the Board could permissibly set duty-specific qualification standards, including recognizing national certifications as sufficient for certain duties. But it found no statutory hook for a freestanding registration requirement functioning as an occupational license, contrasting the delegation statute's duty-focused language with the General Assembly's separate, explicit certification statutes for other categories of medical personnel.

Citations

Statutes:

• HO §14-304, and subsections (a), (b), (c), and (d) (delegation of duties by physicians; Board's rulemaking scope)
• HO §14-101(i) (definition of "practice medicine")
• HO §14-701 (unlicensed practice of medicine)
• HO §14-303, §14-303.1, and §14-303.2 (separate certification statutes for cardiac rescue technicians, aviation trauma technicians, and emergency medical technician-paramedics)
• §§10-201(c) and 10-205 of the State Government Article (hearing requirements for case-by-case denials)
• COMAR 10.32.03.016(8) (Board's regulatory definition of "physician's assistant")
• COMAR 10.32.03.04, 10.32.03.04B, and 10.32.03.04.F (physician's assistant registration and examination requirements)
• COMAR 10.32.03.05 and 10.32.03.05B and C (job description review procedure)
• COMAR 10.32.03.06B (prohibition on delegating prescribing/dispensing authority)
• Chapter 109, Laws of Maryland 1988 (later law redesignating the Board, noted in the opinion's Editor's Note)

Cases: None cited in this opinion.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Physicians—Delegation of Duties—Physician's Assistants—The Board of Medical Examiners May Regulate The Duties Delegated To Physician's Assistants But May Not License Or Register Physician's Assistants.

February 18, 1986

C. Earl Hill, M.D.
President
Board of Medical Examiners

The Board of Medical Examiners has requested our opinion regarding the scope of its authority under §14-304(c) of the Health Occupations Article ("HO" Article) to regulate physician's assistants.

For the reasons stated below, we conclude that HO §14-304 does not authorize the Board of Medical Examiners to act as an occupational licensing board for physician's assistants. Thus, the Board lacks the authority to pass upon the qualifications of physician's assistants under a procedure, whether labeled "registration" or something else, that amounts to licensure or certification. However, HO §14-304(c) does authorize the Board to specify the circumstances under which a physician may delegate duties within the scope of the practice of medicine to an assistant and to regulate the carrying out of those duties by a physician's assistant.

We recognize that the line between impermissible regulation of physician's assistants as such and permissible regulation of delegated duties by physicians is not easy to draw. Hence, we believe that more precise direction from the General Assembly is warranted.

I
Statutory Provision on Delegated Duties

HO §14-304 provides as follows:

"(a) To the extent permitted by the rules, regulations, and orders of the Board and the Commission, an individual to whom duties are delegated by a licensed physician may perform those duties without a license as provided in this section.

(b) The individuals to whom duties may be delegated under this section include any individual authorized to practice any other health occupation regulated under this article.

(c) The Board shall adopt rules and regulations to delineate the scope of this section. Before it adopts any rule or regulation under this section, the Board shall invite and consider proposals from any individual or health group that could be affected by the rule or regulation.

(d) (1) If a duty that is to be delegated under this section is a part of the practice of a health occupation that is regulated under this article by another board, any rule or regulation concerning that duty shall be adopted jointly by the Board of Medical Examiners and the board that regulates the other health occupation.

(2) If the two boards cannot agree on a proposed rule or regulation, the proposal shall be submitted to the Secretary for a final decision."

HO §14-304 recognizes the reality that a physician cannot alone perform every act that falls within the practice of medicine. See HO §14-101(i) (definition of "Practice medicine"). Thus, HO §14-304 sets the basic conditions under which duties may be delegated to persons other than physicians and assures that those persons will not be subject to prosecution for practicing medicine without a license. See HO §14-701.

Moreover, HO §14-304 addresses the full range of potentially delegated duties. That is, it provides that if the duty "is a part of the practice of a health occupation that is regulated under this article by another board," the duty may be delegated to that practitioner and "any rule or regulation concerning that duty shall be adopted jointly by the Board of Medical Examiners and the board that regulates the other health occupation." HO §14-304(d). If the duty is within the scope of practice of medicine alone, the physician may delegate the duty to anyone, subject to the Board's regulations. HO §14-304(a) and (c).

II
Physician's Assistants

The profession of physician's assistant is not presently regulated by the Health Occupations Article. Under the Board's regulations, a physician's assistant is defined as follows:

" 'Physician's assistant' means an individual other than a licensed physician who, after adequate training, registration by the Board of Medical Examiners, and having a job description approved by the Board, may perform certain duties that would otherwise be performed by a licensed and registered physician." COMAR 10.32.03.016(8).

In general, the Board's regulatory scheme has two basic elements: criteria governing the carrying out of delegated duties, and requirements for the registration of physician's assistants. Compare, e.g., COMAR 10.32.03.06B (prohibition on delegating authority to prescribe or dispense drugs) with COMAR 10.32.03.04B (application and examination requirements for physician's assistants).

III
Scope of Board Authority

A. Introduction

In a recent opinion, we described as a "fundamental premise" of administrative law that "the actions of an administrative agency must be consistent with the statute that grants it the authority to act." 70 Opinions of the Attorney General 135, 135 (1985). Hence, the authority of the Board of Medical Examiners to regulate delegated duties, and those who carry them out, depends upon HO §14-304 and the legislative intent that it reflects.

B. Permissible regulation

HO §14-304 protects patient welfare through regulation of the actual performance of delegated duties: "To the extent permitted by ... regulations, ... an individual to whom duties are delegated by a licensed physician may perform those duties without a license as provided in this section." HO §14-304(a). Thus, the Board plainly acts within its authority under HO §14-304 when it adopts reasonable regulations on such matters as the duties that may be delegated to physician's assistants and the supervision that must be provided.

Moreover, the Board is presently authorized to make determinations about the qualifications of physician's assistants, in the context of deciding whether to allow assistants to perform a given duty. For example, assuming a reasonable basis for its decision, the Board may identify duties that are not to be delegated under any circumstances, because no physician's assistant is qualified to perform those duties. Conversely, the Board may identify a given set of duties that may be delegated to any physician's assistant who is certified by a national certifying board or holds some other credential identified by the Board. In effect, the Board would be making a regulatory judgment that all persons so certified are qualified to perform the identified duties.

We believe that essentially self-enforcing standards of this kind best comport with the mandate of HO §14-304(c) that the "Board shall adopt rules and regulations to delineate the scope of this section."1 Nevertheless, the Board is not foreclosed from consideration of delegation questions on a case-by-case basis as well. For example, the Board has the authority to refuse to permit a particular physician to delegate particular duties to a particular physician's assistant, on the grounds that the assistant is not qualified to perform those duties. But such decisionmaking often carries with it a risk that those adversely affected will perceive the process as arbitrary and unfair. Therefore, if the Board intends to continue a process of case-by-case determinations, like the review of individual job descriptions contemplated by COMAR 10.32.03.05, it should take care to do so on the basis of reasonable, consistently applied factors.2

C. Impermissible regulation

In our view, HO §14-304(c) does not authorize the Board to create, in effect, an across-the-board licensing requirement for physician's assistants. The "registration" scheme under COMAR 10.32.03.04 imposes eligibility and examination requirements akin to the prerequisites for licensure required by statute for the various health occupations.

If such direct regulation of entry into the profession is to be imposed, action by the General Assembly is required. Indeed, the General Assembly has acted in precisely this fashion in requiring a certification procedure for cardiac rescue technicians [HO §14-303], aviation trauma technicians [HO §14-303.1] and emergency medical technician-paramedics [HO §14-303.2]. In light of the wording and apparent purpose of HO §14-304, and the General Assembly's enactment of certification criteria for specific categories of otherwise unregulated persons who perform delegated duties, we conclude that the Board lacks the authority to regulate physician's assistants as a group, through the analogue to licensure in COMAR 10.32.03.04.3

IV
Conclusion

In summary, it is our opinion that HO §14-304 authorizes the Board of Medical Examiners to specify the duties that may be delegated to a physician's assistant and to regulate the conditions under which those duties are to be performed. It does not authorize the Board to license or register physician's assistants.

Stephen H. Sachs
Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: The Board of Medical Examiners has been redesignated as the Board of Physician Quality Assurance, with new responsibilities for physician discipline. Chapter 109, Laws of Maryland 1988.

1 We do not mean to impliedly endorse all of the specific provisions of the Board's substantive regulation of delegated duties. The Antitrust Division will shortly be undertaking a review of those regulations as part of its counseling function.

2 We note that the Board's current regulations provide for notice and a hearing if the Board disapproves an application for registration. COMAR 10.32.03.04.F. However, no comparable provision provides for notice and a hearing if the Board disapproves a job description. See COMAR 10.32.03.05B and C. If the Board determines to continue case-by-case determinations about proposed delegated duties, it may well be required to grant a hearing before denying a proposal that a physician's assistant perform such duties. See §§10-201(c) and 10-205 of the State Government Article.

3 As discussed in Part III B above, the Board is not precluded from determining that all physician's assistants who hold a particular credential are qualified to perform specified duties.