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                            The Attorney               General of Texas
                                            December      19,    1978

     JOHN L. HILL
     lttorney General


                        Honorable Chet Brooks                           Opinion No. H- 12 95
                        Chairman
                        Senate Committee    on Human Resources          Re:     Authority of a nurse prac-
                        State Capitol                                   titioner    to   perform   services
                        Austin, Texas 187ll                             under indirect physician super-
                                                                        vision.

                        Dear Senator Brooks:

                                You ask several questions about the health care services which an
                        advanced nurse practitioner    may provide.    Your request is prompted by the
                        enactment of P. L. 95-210, the Rural Health Clinic Services Act, 91 Stat. 1485
                        (codified, in scattered sections of 42 U.S.C. SS 1395-1396i1, which permits
                        medicare and medicaid reimbursement         for services rendered by physicians’
                         assistants and nurse practitioners    who operate under indirect      physician
                        supervision.

                               You first ask whether an advanced nurse practitioner,     defined by the
                        State Board of Nurse Examiners as “a professional nurse, currently licensed in
                        the State of Texas . . . [with] knowledge and skills obtained through an
                        advanced educational    program accredited by the Board,” may perform the
                        following services outside the physicial presence of a supervising physician:

                                      a. Take a patient’s medical history
                                      b. Perform a physical examination
                                      c. Do an assessment of health status
                                      d. Identify deviations in health status
                                      e. Institute    a physician’s order for certain simple
                                      laboratory   tests such as chemical examinations    of
                                      urine or blood

                        The Board of Nurse Examiners         establishes standards for programs which
                        prepare   professional   nurse practitioners    and other professional    nurses.
                        V.T.C.S.    art. 4518, S 1.    It licenses persons who practice    “professional
                        nursing,” defined as follows

                                    the performnncc    for compensnlion of any nursing act
                                    (a) in the obscrvntion,   care nnd counsel of the ill,
                                    injured or infirm; fb) in the maintenance of health or




                                                     P.   5105
Honorable   Chet Brooks      -    Page 2     (11-1295)




             prevention  of illness of others; (c) in the administration  of
             medications    or treatments    as prescribed  by a licensed
             physician or dentist; (d) in the supervision or teaching of
             nursing, insofar as any of the above acts require substantial
             specialized  judgment   and skill and insofar as the proper
             performance     of any of the above acts is based upon
             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
             foregoing shall not be deemed to include acts of medical
             diagnosis   or prescription    of therapeutic   or corrective
             measures.

V.T.C.S. art. 4518, S 5. Thus, %ursing acts** include geoeral categories of services
requiring specialized skill and knowledge acquired in an approved nursing course.
The specific nursing acts an individual may perform will therefore depend in part
upon his skill and educational    background.   Set Attorney General Opinion H-896
(1976) (Board of Nurse Examiners       may accredit   specialty programs in nursing
offered by colleges and universities).   The board has approved educational programs
to prepare advanced nurse practitioners       and has developed guidelines for their
practice.   Board of Nurse Examiners,’ Guidelines for Advanced Nurse Practitioners
in Expanding Roles, September, 1978.

         Advanced nurse practitioners,       and other persons, may not practice medicine
 unless also licensed by the Texas Board of Medical Examiners.               V.T.C.S. art. 4498;
 see V.T.C.S. art. 4504a (medical Iicensing’provisions            inapplicable   to “nurses who
 practice nursing only”).       A person practices medicine if he diagnoses, treats, or
‘offers    to treat or cure any disease, disorder, physical deformity              or injury and
 charges therefor.      V.T.C.S. arts. 4510-4510a.      Since “there is some overlapping of
 function     between    those defined as practicing        ‘professional   nursing’ and those
 defined as practicing      medicine, ‘I Attorney    General Opinion H-27 (1973), it may be
 difficult   to characterize   particular health services.      In addition, rules promulgated
 by the Board of Medical Examiners allow a physician to delegste some functions to
 a physician’s nsqistant or other unliccnscd technician, assistant, or employee.             Rule
 386.01.13001 (issued January 8, 1976).         ‘I’hc physicirm musl retain supervision and
 control of the technician, assistnnt or cmploycc.         !&

        Professional   nursing includes acts in the observnlion      of the ill and the
 maintenance     of health.   The statute dots not expressly require direct or on-site
 supervision by a physician.      Compare V.T.C.S. art. 4512e, S 6 (physical therapist
 licensing act does not apply to hospital employee working under direct supervision
 of a physician); art. 4528 (nurses licensing law does not apply to acts done under
 control, supervision or at instruction     of licensed physician); art. 8451a, § 31(c)
 (beauty culture school must be under direct supervision of licensed instructor).   See
 Bizzelle v. Slate, 116 S.W.2d 385 (Tex. Crim. App. 1938); Attorney General OpiniG
 H-395, H-368 (1974) (defining “direct supervision”).     Professional nurses may also




                                           P-   5106
 Honorable   Chet Brooks     -   Page 3    (B-1295)



  administer medications and treatments on a physician’s prescription,        again without
  any statutory requirement       of direct supervision by the physician.     The physician
  may, however, have a common law duty to provide instructions, depending on the
  nurse’s degree of skill.     Annot., 63 A.L.R.Sd 1020 (1975). In a particular     case, in
  person instruction     may be necessary.         When a physician delegates a medical
  function to a nurse or other nonphysician, he must exercise supervision and control.
  Board of Medical Examiner’s Rule 386.01.13001. See Thompson v. Texas State Board
.~of Medical Examiners, 570 S.W.2d 123 (Tex. Civ.App.         - Tyler 1978) (physician may
  not use unlicensed person to perform acupuncture because he lacks knowledge to
  supervise); McKinney v. Tromly, 386 S.W.2d 564 (Tex. Civ. App. - Tyler 1964, writ
  ref’d n.r.e.) (administration    of anaesthetic   by nurse under physician’s control was
  practice of medicine by the physician).       The adequacy of instruction, supervision, or
  control in particular    cases involves fact questions which we cannot resolve in the
  opinion process. However, the nurse practitioner’s advanced training would operate
  in favor of decreased instruction as to nursing acts and decreased supervision as lo
  delegated medical functions.

        If an advanced nurse prnctilioner,       educated in these procedures, lakes a
 medical history or performs a physical exam, he is engaging in acts of observation
 or health maintenance      within Article 4518, seclions 5(a) and fb). We do not believe
 the practitioner    thereby necessarily engages in medical diagnosis prohibited by
:articles 4510-4510b.     We also believe that advanced nurse practitioners     may note
 health status and deviations from normal health as acts in the observation of the ill
 or maintenance     of health.    The guidelines issued by the Board of Nurse Examiners
 authorize    them to provide these services within the limits of their educational
 preparation.     However, an assessment which identifies a disease as the source of
 abnormal symptoms would in our opinion constitute           medical diagnosis.  It would
 therefore not be a nursing act but a medical function.

        We also believe     a nurse may perform      simple laboratory      tests under a
 physician’s orders.    Such tests may be characterized     as acts to maintain health,
 within article   4518, section 5(b).   They may also constitute      the initial stage of
 treatment,   see Provident Life and Accident-Insurance       Co. v. Hutson, 305 ScW.2d
 837 (Tex. CixAoo.      - Beaumont 1957. writ ref’d n.r.e.). which article 4518. section
 S(c) permits a nurse to administer as brescribed by a physician.       Of course; a nurse
 should not diagnose an illness from the tests, but report the results to a physician
 for disgnosis.   Attorney General Opinion WW-1511 (1962) stated that the laboratory
 tests are an integral part of diagnosis, and must therefore be performed under the
 direct control nnd supervision of 11lirrnscd physicinn. ‘I’hc opinion did not consider
 the authorily of a professionnl nurse to perform laboratory tests, and section 5 of
 article 4518 defining professiorml run-sing hnd not yet been cnncted. See Acts 1967,
  60th Leg., ch. fi65, nt 1759. Wr do not hrlicvc the conclusion of WWml          applies in
 the present case. See nlso Altorncy Gcnrr0l Opinion W W-1845 (1961) (performance
 of laboratory tests does not constitute the prrrcticc of mctlicine).




                                          P.   5107
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    Honorable Chet Brooks      -   Page 4    (H-1295)




          There is no statutory requirement   that any of the five services you inquire
    about be performed in the presence of a supervising physician.     As already noted,
    the appropriate kind of instruction depends on the facts of each case.

           You next ask whether a nurse practitioner    who initiates written protocols
    developed by a physician in conformance with the federal regulations promulgated
    under P. L. 95-210 will be acting under adequate physician supervision if the
    physician is not physically present at all times, provided that he is available for
    consultation and referrals, monitors, evaluates, and directs all work performed, and
    is available at all times by telecommunications.     The protocols you refer to are
    described in the regulations    as patient care policies.   The clinic’s health care
    services are furnished in accordance with these policies which include

                    Guidelines   for  the   medical    management      of health
                problems which include the conditions        requiring   medical
                consultation   and/or patient  referral,  the maintenance      of
                health care records, and procedures for the periodic review
                and evaluation of the services furnished by the clinic.

    43 Fed. Reg. 30529 (1978) (to be codified    at 42 C.F.K.   S 481.9(b)(3)(h)).

            The answer to your question depends on whether the particular           protocol
     covers a nursing or medical function.    If it covers a nursing function, for example
     the observation and health maintenance acts inquired about in your first question, a
    nurse may provide it without any statutory requirement       of direct supervision by a
    physician,   although   the physician   must provide adequate      instruction.   If the
    protocol delegates a medical function, the physician must supervise and control the
    agent’s performance.      In addition, the medical function must be delegable.       See
    Thompson, v. Texas State Board of Medical Examiners, -.              The questions asT
    whether .a protocol covers nursing acts or medical functions, whether ~the medical
    ,function is delegable,     and whether adequate supervision is provided are fact
    questions.

            You finally ask whether any provision of Texas law would prohibit a nurse
    practitioner   from providing medications to patients under standing and/or written
    orders. Your inquiry does not list any specific medication or order, so our answer is
    necessarily in general terms. We do not address whether some medication or orders
    might be of such a nature that they would provide an exception to the general rule.
     Article 4518, section 5 permits a nurse to administer medications as prescribed by a
    licensed physician, but expressly does not permit a nurse to prescribe therapeutic
    measures. To ‘prescribe” is defined by Webster’s Third International      Dictionary as
    “to direct, designate, or order the USC of ns a rcmcdy.” See also Colgrove v. U.S.,
     176 F.2d 614 (9th Cir. 1949).     WC bclicvc the statutory   language implies that a
    physician is to decide that medication       is needed.  WC bclirve our courts would
    probably hold that the prouision of medication f~rsuant to standing orders, without
    a physician’s prescription   for the individual patient, would constitute  the practice
    of medicine and not a nursing net.




                                            P.    5108
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    Honorable   Chet Brooks    -   Page 5    (H-1295)




                                        SUMMARY

                Advanced nurse practitioners     may take a patient’s medical
                history,   examine   him, assess health status and identify
                deviations from normal health and institute         a physician’s
                order    for certain    simple laboratory    tests without    the
                supervising physician being physically present.        Whether a
                nurse may initiate written policies for health care when the
                physician is not present depends on the particular      function
                covered     by the policy.     A nurse practitioner     may not
                generally    provide medications   to patients    under standing
                and/or written orders unless the physician has prescribed for
                the individual patient.




    APPROVED:




    Gpinion Committee




                                            p.       5109

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