               THE        ATTORNEY                         GENERAL
                                OF’ =XAS
                           Auam~.       TEXAS 787ll


                                     September             9, 1974


The Honorable   Margaret  L. Rowland, R. N.                   Opinion   No. H-    395       :’
Executive Secretary
Board of Nurse Examiners     for the State                    Re: Circumstances   under
  of Texas                                                    which person not licensed
55 North Interregional,  Suite 101                            as nurse may perform
Austin,  Texas   78702                                        professional nursing acts.

Dear Mrs.   Rowland:.

         You have asked three (3) questions having to do with the performance
of nursing acts by persons not licensed under the Texas statutes    regulating
the practice  of professional nursing, Article 4513, V. T. C. S., et o’eq.
You first ask:

                Does the definition of professional      nursing in
                Section 5 of 4518 [V. T. C. S. ]. taken in conjunction
                with the requirement     of registration   in Section 4
                of 4518 [V. T. C. S. ], permit one employed by a
                Texas hospital to practic,e professional       nursing in
                Texas hospitals   or eLsewhere whether or not they
.
                are Mcensed by the Texas State Board of Nurse
                Examiners 7

        The definition   of pr,ofessional        nursing     to which you refer    reads:

                ‘Professional    Nursing’ shall be defined for the purpose.6
                of this Act as the performance      for compensation   of any
                nursing act (a) in the observation,      care and counrel of
                the’ill,  injured or infirm; (b) in the maintenance    of
                health or prevention    of illness of others; (c) in the
                administration    of medicationr   or treatmenta   a#




                                            p.   1848
                                                                                       ,    .



The Honorable   Margaret     L. Rowland       page 2   (H-395)




                prescribed     by,a licensed physician or dentist;
                (d) in the supervision      or teaching of nursing,
                insofar as any of the above acts require substantial
                dalined        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,    phvsical and social science as acquired
                by a-complete      course in an approved school of pro-
                fes.sional nursing.      The foregoing     shall not be deemed
                to include acts of medical dia.gnosis or prescription             of
                therapeutic     or corrective    measures.       (Emphasis addrd)

         Obviously,  this definition does not encompass    all nursing acts.
Some nursing acts do not require the Bame high degree of knowledge
and skill and, therefore,    are not regulated by the “professional”   nursing
provisions   defined above,

          The requirement of registration to which you refer was impoaed by
Acts 1969, p. 1571, ch. 476, and is codified as Article 4518 5 4, V. T. C. S.
It reads:

                    Any person practici.ng or offering         to practice
                Fofessional     nurring in this state for      compensation,
                shall hereafter   be required to submit        evidence to the
                Board of Nurse Examiners       that he or      she is qualified
                to practice and shall be registered     as      provided by law.
                (Emphasis added)

       That same Act of the Legislature          amended    Article   4528,   V. T. C.S.,
which now reads:

                This law shall not be construed to appiy to: the
                gratuitous nursing of the sick by friends; the
                furnishing of nursing care where treatment is
                by prayer or spiritual means alone: acts done
                under the control or supervision  or at the instruc-
                tion of one licensed by the Texas State Board of




                                        p.   1849
The Honorable     Margaret    L. Rowland       page 3    (H-395)




                 Medical Examiners:        Licensed Vocational   Nurses;
                 the practice   of registered    tuberculosis  nurses
                 certified  under Article 4528b, Vernon’s       Texas
                 Civil Statutes; nor 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)

        Under the clear language of these statutes,   we think the mere fact
that one is employed by a Texas hospital is insufficient   by itself to exempt
anyone from the regulatory   requirements applicable    to professional  nurring,
and we answer your firot question in the ne,gative.

        Your    second   and third questions    ask:

                 (2) With reference    to Article 4528 [V. T. C.S.] in a
                 Texas hospital,    can one employed by a Texas hospital
                 not licensed to practice professional    nursing in Texas
                 do nursing acts ‘under the control or supervisiqn      of
                 one licensed to practice     medicine in Texas’ if a physician
                 is not actually present and directly controlling    or super-
                 vising said unlicensed pe,rson?

                 (3) With reference     to Article 4528 [V. T. C. S.], in a Texas
                 hoscitai,   can one employed by a ‘Texas hospital not licensed
                 to practice   professional    nursing in Texas do nursing acts
                 wherein the person licensed to practice        medicine in Texas
                 is not present and directly instructing      euch unlicensed
                 person?

        These two questions,  in our opinion,          are likewise answered by the
clear unambiguour  language of the statutes,           and especially the emphasi&ed
words of Article 4528, supra.

         Whether the acts are performed in a hospital or elsewhere,, or by
a hospital employee or someone else, does not appear to be the controlling
The Honorable     Margaret   L.   Rowland     page 4   (H-395)




factor under the language of Article 4528; the controlling factors appear
to us to be whether the acts are done under the control or supervision   of
one licensed    by the Board of Medical Examiners or that they be done at
the instruction   of a licensee.

          In Attorney General Opinion H-368 we construed a similar statute
applicable     to the practice    of physical therapy and exempting from licensing
“employees performing          services   under the direct supervision     of a physLcian
in a hospital . . . . ” We said that, in our opinion, the provision             did not
require the constant physical presence             of the physician and that it would
be satisfied if “the responsible         physician personally     trains and inatrukts
the hospital employee in the process            to be employed and remains reas,onably
available    to inspect,   correct,     and direct the work of the employee . . . . ~”

         So, too, we believe that Article 4528. V. T. C: S., does not require
the constant physical presence         of a physician to authorize the performance
of professional     nursing acts by one not otherwise licensed to perform       them,
so long as the responsible        physician personally   assumes   control and
supervision     of the employee or instructs him in what is to be done, and
remains reasonably        available to see that the nursing acts are properly
performed.

                                  SUMMARY

                      Hospital employment       alone does not exempt one
                 from etatutory     regulations   concerning  professional
                 nursing.     It a physician ham assumed and exercises
                 control or supervision      of an unlicensed person per-
                 forming professional       nursing duties or has peraonally
                 instructed    that person in the acts to be done, that
                 person is not precluded by the statutes governing
                 professional     nursing from performing     such pro-
                 fessional    nursing acts.




                                        p.   1851
The Honorable   Margaret    L. Rowland      page 5   (H-395)




---+-dLw
DAVID M. KENDALL.
Opinion Committee
                           Chairman



lg




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