                                              The Attorney         General of Texas

    JIM MATTOX
                                                               June 21, 1984
    Attorney General



    Supreme      Court Building             Honorable Chet Brooks                    opinion No. JM-173
    P. 0. Box 12546
    Austin.    TX. 76711. 2546
                                            Chairman
    512/475G?501
                                            Committee on Health 8 Human Resources    Re: The Nurse Practice Act
    Telex    0101674.1367                   Texas State Senate                       exception   for acts    done
    Telecopier     5121475.0266             P. 0. Box 12068, Capitol Station         under the control or super-
                                            Austin, Texas   78711                    vision or at the instruction
    714 Jackson.    Suite 700
                                                                                     of a physician
    Dallas,   TX. 75202-4506
    2141742-6044                            Dear Senator Brooks:

                                                 Your letter ~requesting an opinion from this office poses the
    4624 Alberta       Ave., Suite    160
                                            following questions:
    El Paso. TX.       70605-2703
    015/533.3484
                                                         1. Do the provisions of section 3.06(d) of the
                                                      Medical Practice Act, article 4495b, V.T.C.S.,
r      31 Texas,    Suite 700                         governing physicians’ delegation of authority to
     ,oustm,     TX. 77002-3111                       nonphysicians apply to acts exempted from the
    713,223.5666
                                                      Nurse Practice Act as ‘acts done under the control
                                                      or supervision or at the instruction of one
    606 Broadway,         Suite 312                   licensed by the Texas Board of Medical Examiners?’
    Lubbock,     TX.    70401-3470
    606,747.5236                                         2. Does the Board of Medical Examiners have
                                                      the authority to regulate the details and means
    4309 N. Tenth, Suite S                            and manner of the physician’s [delegations of
    ,&Allen,    TX. 76501-1665                        authority to nonphysicians acting under the]
    5121662-4547                                      control or supervision or at the instruction of
                                                      one licensed by the Texas State Board of Medical
    200 Main Plaza, Suite 400                         Examiners? In other words, may the board adopt
    San Antonio.  TX. 76205.2707                      regulations requiring that: (a) the instruction
    51212254101                                       be addressed to the particular person who will do
                                                      the act,    (h) the instructing physician be
                                                      familiar with the training and skill,s of the
     An Equal      Opportunity/
     Affirmative     Action     Employer
                                                      person who will     do the act, or        (c) the
                                                      instruction be directed to a natural person and
                                                      not to an institution or corporation?

                                                 Article 4495b, section 1.03(8) defines “practicing medicine” as
                                            follows:

                                                         (8) . . . A person shall be considered to be
                                                      practicing medicine within this Act:


                                                                       p. 759
Honorable Chet Brooks - Page 2        (JM-173)




             (A) who shall publicly profess to be a
          physician or surgeon and shall diagnose, treat. or
          offer to treat any disease or disorder, mental or
          physical, or any physical deformity or injury by
          any system or method or to effect cures thereof;
          or

             (B) who shall diagnose, treat, or offer to
          treat any disease or disorder, mental or physical,
          or any physical deformity or injury by any system
          or method and to effect cures thereof and charge
          therefor, directly or indirectly, money or other
          compensation.

Article 4518. V.T.C.S.,     contains         the   following   definition   of
"professional nursing":

              sec. 5. Insofar as any of the following acts
          require substantial specialized judgment and skill
          and insofar as the proper performance of any of
          the following acts is based upon knowledge and
          application of the principles of biologixal,
          physical, and social science as acquired by a
          completed course in an approved school of
          professional nursing, 'Professional Nursing' shall
          be defined as the performance for compensation of
          any nursing act (a) in the observation, assess-
          ment , intervention, evaluation, rehabilitation,
          care and counsel and health teachings of persons
          who are ill, injured or infirm or experiencing
          changes in normal health processes; (b) in the
          maintenance of health or prevention of illness;
          (4     in the administration of medications or
          treatments  as prescribed by a licensed physician
          or dentist; (d) in the supervision or teaching of
          nursing; (e) in the administration, supervision,
          and evaluation of nursing practices, policies, and
          procedures. The foregoing shall not be deemed to
          include acts of medical diagnosis or prescription
          of therapeutic or corrective measures.

There is considerable overlap between these          definitions.    A
physician's license authorizes him to perform all nursing acts within
sections 5(a). (b), and (c). The medical acts delegated to non-
physicians are virtually always acts involving the care and treatment
of a patient. Moreover, s physician's license authorizes him to
perform all nursing acts involving diagnosi~s,treatment, and care of a
patient. See generally Baker v. State, 240 S.W. 924 (Tex. Grim. App.
1921); Attorney General  Opinions MW-318 (1981); H-1295 (1978); H-27
(1973). We will therefore limit this opinion to those nursing acts
set out in sections 5(a), (b). and (c), since it seems apparent that



                                 p.    760
Honorable Chet Brooks - Page 3   (JM-173)




this will adequately address the delegations about which you are
concerned.

     The Nurse Practice Act permits licensed nurses under certain
circumstances to perform medical acts that they could not otherwise
perform without violating article 4495b. See V.T.C.S. art. 4495b,
53.06(b)(4). The two acts are in pari mass         and should be read
together. -See 53 Tex. Jur. 2d Statutes 5186, at 280.

     When the Medical Practice Act and the Nurse Practice Act are read
together, it is apparent that a licensed physician is exempted from
the Nurse Practice Act only when his actions are authorized by the
Medical Practice Act. Article 4528 makes the Nurse Practice Act
inapplicable

          to acts done by persons licensed by any board or
          agency of the State of Texas if such acts are
          authorized by such licensing statutes. (Emphasis
          added).

It is equally clear, however, that a physician violates the Medical
Practice Act if he fails to conform his delegations of medical acts to
the requirements of subsection 3.06(d)(l) of that act, article 4495b.
V.T.C.S., which reads:

          [A] person licensed to practice medicine shall
          have the authority to delegate to any qualified
          and properly trained person or persons acting
          under the physician's supervision any medical act
          which a reasonable and prudent physician would
          find is within the scope of sound medical judgment
          to delegate if. in the opinion of the delegating
          phvsician, the act can be properly and safely
          performed by the person to whim the medical act is
          delegated and the act is performed in its
          customary manner, not in violation of any other
          statute, and the person does not hold himself out
          to the public as being authorized to practice
          medicine. The delegating physician shall remain
          responsible for the medical acts of the person
          performing the delegated medical acts. The [Texas
          State Board of Medical Examiners] may determine
          whether or not an act constitutes the practice of
          medicine, not inconsistent with this Act, and may
          determine whether any medical act may or may not
          be    properly    or     safely    delegated    by
          physicians . . . . (Emphasis added).

     A physician is not relieved of his responsibility under the
Medical Practice Act simply because the exception to the Nurse
Practice Act makes the Nurse Practice Act inapplicable to "acts done



                                 p. 76i
Honorable Chet Brooks - Page 4        (JM-173)


                                                                         ?



under the control or supervision or at the instruction of" a
physician. V.T.C.S. art. 4528. The Medical Practice Act expressly
provides that the physician "remains responsible for the medical acts
of the person performing the delegated medical acts." Moreover, his
personal exemption from the Nurse Practice Act is conditioned upon the
validity of his acts under the Medical Practice Act. Thus, in answer
to your first question, we advise that the provisions of section
3.06(d) of the Medical Practice Act apply to a physician's delegation
of authority to a non-physician even though the act delegated may come
within the term, "nursing act," as described by the Nurse Practice
Act.

     In contrast, however, the Nurse Practice Act exemption for
non-licensed persons acting under the supervision, control or
instruction of a licensed physician is not conditioned upon the
physician's actual authority to delegate theact.   In our opinion, the
Nurse Practice Act is designed to protect persons who, in good faith,
act at the direction of a licensed physician, though the physician may
have violated the Medical Practice Act in giving the direction.

     Section 3.07(i) of the Medical Practice Act, with which the Nurse
Practice Act must be read, expressly provides:

          A person to whom a physician has delegated a
          medical act to perform is not guilty of practicing
          medicine without a license unless the person acts
          with knowledge that the delegation and action
          thereunder is a violation of this Act.

We conclude that a physician may violate the Medical Practice Act by
delegating nursing acts in a manner not permitted by the Medical
Practice Act, but that a person performing the delegated nursing act
in good faith -- although acting as the delegate= of such a physician
-- violates neither the Nurse Practice Act nor the Medical Practice
Act.

     Your second question consists of a general inquiry and three
subparts. The general question asks whether the Texas State Board of
Medical Examiners has authority to regulate the details, means, and
manner of delegating nursing acts to be done under a physician's
control or supervision or at his instruction.

     We have already observed that the provisions of section 3.06(d)
of the Medical Practice Act apply to a physician's delegation of
article 4518 nursing acts to non-physicians. The final sentence of
subsection 3.06(d)(l) of the Medical Practice Act, states:

          The board may determine whether or not an act
          constitutes the   practice of   medicine,   not
          inconsistent with this Act. and may   determine



                                 p.    762
Honorable Chet Brooks - Page 5     (JM-173)




         whether any medical act may or may not be properly
         or safely delegated by physicians . . . .

since, in our view, nursing acts in question are species of medical
acts under the Medical Practice Act , we advise that the Texas State
Board of Medical Examiners does have such authority, consistent with
the Medical Practice Act.

     The subparts of your question concern the authority of the Texas
State Board of Medical Examiners to require that a physician's
instructions be addressed to a particular person. to require that the
instructing physician be familiar with the training and skills of the
person who will perform the delegated act, or to require that such
instructions be directed to a natural person rather than to an
institution or corporation.

     Regulations of the board respecting a physician's delegations of
medical acts must be "not inconsistent" with the Medical Practice Act,
which expressly states that

          the individual physician should be given the
          greatest opportunity to      exercise his     best
          independent professional judgment in deciding what
          medical acts can be safely delegated; therefore.
          rules of the board regulating delegation should
          have the purpose of promoting such exercise of
          professional judgment and      decision by     not
          containing, except as absolutely necessary, global
          prohibitions or restrictions on delegation of
          medical acts . . . .

V.T.C.S. art. 4495b, §1.02(8).      Furthermore, the act is to be
construed in a way that permits licensed physicians to delegate such
acts to "any qualified and properly trained person or persons" under
his supervision. Id. 03.06(d)(l). We think the Texas State Board of
Medical Examiners, pursuant to the statute. might set standards
applicable to the selection of persons "qualified and properly
trained" to perform particular acts under the physician's supervision,
but not itself to select the only individuals to whom such acts might
be delegated. -Cf. 22 T.A.C. 1193.1 (1982).

     We also believe the board has statutory authority to require that
physicians be familiar with the training and skills of the person whom
the physician instructs to perform delegated medical acts. Such power
is easily encompassed by the express authority of the board to
"determine whether any medical act may or may not be properly or
safely delegated by physicians." V.T.C.S. art. 4495b. 53.06(d)(l).

     Similarly, it would not be inconsistent with the Medical Practice
Act for the board to require that instructions of a physician
concerning the performance of delegated medical acts be directed only



                                 p. 763
Honorable Chet Brooks - Page 6     (JM-173)




to natural persons. Section 1.03(6) of the act states that the word
"person," as used in the act, "means an individual unless otherwise
expressly made applicable to a partnership, association, or
corporation." Section 3.06(d) thereof, which allows such delegations,
speaks only of "persons" and is not "otherwise made applicable" to
institutions or corporations. _Cf. Attorney General Opinions MU-318
(1981); H-395 (1974).

                             SUMMARY

             A physician may violate the Medical Practice
          Act by delegating nursing acts in a manner not
          permitted by the Medical Practice Act, but a
          non-licensed person performing the delegated
          nursing act in good faith -- although acting as
          the delegatee of such a physician -- violates
          neither the Nurse Practice Act or the Medical
          Practice Act. The Texas State Board of Medical
          Examiners has authority, consistent with the
          Medical Practice Act, to regulate the details,
          means and manner of delegating nursing acts done
          under a physician's control or supervision or at
          his instruction.




                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton



                                   p. 764
