                                The Attorney                General of Texas
                                                    April   1,   1981                   .
rfWWHITE
aney General
                             Honorable Chet Brooks Chairman               Opinion No. NW-318
                             Senate Committee on Human Resources
                             Archives Building                            Re: Delegation of medical acts
                             Austin, Texas 787H                           by means of standing orders

                             Dear Senator Brooks
                                   You first ask:

                                             In the absence of statutory language permitting
                                         delegation of medical acts, does the Board of Medical
                                         Examiners have the authority to promulgate ales
                                         relating to the dalegatton of medical acts to non-
                                         physicians?
200ilasAm.hnr382
urlul.Tx.77003           -          Article 4512a, V.T.C.S., which was enacted by the sixty-sixth lqisla-
-                             ture, requires the Board of Medical Examiners to adopt standards regulating
            -.
                              the extent to which a phyaicianL responsibilities may be delegated to a
8 Bmadrry.   Suit. 312
                              physician assistant  No other provision of the Medical Practice Act speaks
rte&.   lx. 7Mol              to the delegation of medical acts However, authority for such delegations
dnl7.6238                     and for board regulation thereof can bs found implicit in the Medical
                              Practice Act and in statutes governing other healing arts
DON.lWlh.SUlUB
CAwn. TX. 7csol                      The board may cancel, revoke, or suspend the license of any physician
Iuw1u47                       who permits another to practice under his license or who sick the practice of
                              mediche by an tmlicensed person. V.T.C.S. arts. 4505(l2), (15); 4506. In
                              exercising this authority, the- board must distinguish between lawful
                              delegations of medical acts and delegations which constitute grounds for
                              disc~plinaq action against the physician. In Thompson v. Texas State Board
                              of Medical Examiners, 570 S.W. 123 (Tex. Civ. App. - ‘Qler 1978, writ rePd
                              nr.e.), two physictans appealed from lfcense revocations for allowing
                              unlfcensed pe-&ns to practice acupuncture in their offices.        The court
                              upheld a board pollcy statement which prohibited physicians from delegating
                              authority to perform acupuncture to unlicensed persons. It noted that the
                              board condoned the use of urlioansed persons to administer fnnoculations and
                              draw blood, and held that the board could constitutionally treat the
                               administration of acupuncture different3 7. cr. +drews v. Ballard, C..A. No.
                               R-77-999 6.D. Tex. July 9, 1990) restriction agarnst delqatlon              of
                               acupuncture is unconstitutional).       The board may promulgate ~1s
                               identifying the medical acts which may and may not be delegated. See      -
                               V.T.C.S. art 4509; Attorney General Opinion H-1093 (1977).
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                          Honorable Chet Brooks - Psge TWO (MW-318)



                                Statutes regulating other health professiorrs recognize that physicians may
                          delegate medical acts to other persons. For example, the statute regulating physical
                          therapists does not apply to employees performing services u&r               the direct
                          supervision of a physician in n hcepitaL V.T.C.S. art. 4512e, 56. A limnsed physician
                          may treat injuries by means of physical therapy, article 4512e, section 6, V.T.C.S., and
                          he may delegate hfs authority to do so to someone not licensed as a physician or a
                          physical therapist. See Attorney General Opinion H-368 09741 Similar exemptions for
                          acts done by an unhinsed person at the direction of a licensed physician ape found In
                          other statutes.    See V.T.C.S. art. 4526 (nursfng); art. 4552-5.17 (optometry). These
                          pmvisiorw fndicat= legislative assumption that physicians could delegate medical acts
                          involving treatment to non-physicians. The Board of Medical Examiners may regulate
                          such delegations under its broad authority to regulate the practice of medicine.
                          V.T.C.S. art. 4509.

                                 You ask several questions about rules promulgated by the Board of Medical
                          Examiners on the delegation of health care tasks to qualified non-physicians. Rubs
                          366.17.00.001-.005,5 Tex. Reg. 1338,1339, 1390 (198OL Rule .004 requires that standing
                          delegation orders be “in keeping with sound medical practice.” Rule .005 prohibits the
                          use of standing delegation orders “which authorize the exercise of independent medical
                          judgment or treatment”     A physician wh~$l;~~m~is     prohibition.is subject to having
                          his license suspended or revoked.                      “sound  medical practt&       and
                          “independent medical judgment” are not defined. You ask whether the use of these
                          undefined terms renders the ale unconstitutionally        vague for failing to provide
                          physicians adequate notice of what acts can and cannot be delegated by standing
                          delegation orders For the reasons stated below, we do not believe these nrles are
                           thereby rendered unconstitutionally vague.

                                 The ~1s of an administrative agency will be construed in the same manner as
                           are statutes. Railroad Commission v. Shell Oil Co., 161S.W. 2d 1022 (Tex 1942). They
                           will be interpreted in a manner to uphold them, if this can reasonably be done. rd, at
                           1026.
                                      The courts have upheld language in the Medical Practices Act stating grounds for
                               license revocation, despite claims that it was void for uncertainty. A predecessor of
                               article 4505 authorized the board to refuse or revoke a license for conviction of a
                               felony, commission of a crime involving moral turpitude or “other grossly un-
                               professional or dishonorable conduct of a character likely to deceive or defraud the
                               public.” This language was not void for uncertainty because the legislature intended
                               the conduct it described to be similar in nature to the crimes referred to in the same
                               provision    Morse v. State Board of Medical Examiners, 122 SW. 446 (Tex. Civ. App.
                               1909, writ rePdL Moreover, the use of ‘general language was necessaryto fully protect
                                the public, because of the impossibility of enumerating in detail every distinct act
                                intended to be pmhlbited. Berry v. State, 135 S.W. 631 (Tex. Civ. App. 19ll, writ ref’d)
                               See abo Jordan v. State Board of lnsursnce, 334 S.W. 2d 278, 280 (Ten 1960). (“not
                                worthy of the public confidence” an acceptable standard of measurement).

                                    In our opinion, the nrles are not rendered unconstitutionally vague by their use of
                               the undefined terms “sound medical practice” and “independent medical judgment.”
     Honorable Chet Bmka     - Page Three      (NW-318)



     These terms receive some definition from the enumeration h Rule .004 of services,
     which may be provided by non-physicians under standing order% In addition, the rules
     must be read against the beckground of the statute they implement      The legislature
     enacted the Medical Practice Act in exercise of its power to protect the public health.
     Ex carte Halsted, 182 S.W. 2d 479 (Tex. Grim. App. 1944). The requirement that
     delegations of health aervlcas be made “with due regard for the safety of the patient
     and in keeping with sound medical practice” serves to protect the public health, and
     shwld be interpreted by practitioners in light of that goal Whst constitutes “sound
     medical practice” will have to be deeided on the facts of each case, just as
     malpractice, a ground for license revocation, must be identified on a case-by-case
     basis. See V.T.C.S. art 4512. However, those terms are not therefore void for
     vague&F
            Rule .005 states that a physician who uses standing orders which authorize the
      exercise of independent medical judgment shall be subject to discipline under article
      4505(12) and OS), the provisions on permitting another to practice under his license and
      on aiding the practice of medicine by an unlicensed person. The term “independent
      medical judgment” is used to identify impermissible delegations of medical acts We
      believe it 1s used to interpret the statutory definition of the practice of medicine.
      When read together with the statute, we do not believe this term Is void for vagueness.

           Rule .004 of the rules promulgated by the Board 61 Medical Examiners
     enumerates acts which can be authorized under standing delegation orders, Several of
- __ these.are identified in Attorney General Opinion H-1295 (l976) or article 4516(S)as acts
     of professional nursing. ~Yournext several questions relate to the possibility that the
     Board of Medical Examiners may be attempting to regulate the practice of nursing.
     You point out that the supervision of nursing and nursing practices is the practice of
     professional nursing. V.T.C.S. art 4518, SS(dL

                  Question 4: In light of the fact that article 4516(S) identifies
                  the supervision of nursing as the practice of professional
                  nursing, &es the &legation and supervision of nursing acts
                  constitute the practice of medicine 89 defiiti by articles 4510
                  and 45108, so as to be subject to regulation by the Board of
                  hledlcal Examiners?

             This office noted in Attorney General Opinion H-27 (l973) that there is some
       overlap between the practice of medicine and the practice of nursing. Much of what a
       professional nurses license authorizes the holder to do could ako be done by a
       physicisn under hi license, .such as observing the side, maintaining health and
       preventing illness, administering medicines and treatmen&       G Baker v. State, 240
       S.W. 924 (Tex. Crim. App. ‘192B 0icensed physician ten practice any branch of
       medicine including optometry).       Thus, the health services fn westion are not
       exclusiwly acts of professional nursing. A physician may perform them under his
       license and in appropriate cases may delegate their performance to persons licensed
       neither as a physician nor as a professional nurse. He has delegated and supervised
        medical acts, subject to re@ation by the Board of Medical Examiners, Although the
       same ects might also be nursing actsj the physician delegating those acts to an
        unlicensed person has not engaged in the supervision of nursing.
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              Honorable Chet Brooks - Page Four      (NW-318)



                    Your next three questions deal with the exemption found in article 4528 and we
              will arswer them together.

                         Question 5: Does either the Board of Medical Examiners oi the
                         Board of Nurse Examiners have authority to regulate profes-
                         sional nursing care provided rnder that part of article 4528
                         whfeh exempts ‘acts done under the control or supervision or at
                         the instnmtion of one licensed by the Texas Board of Medical
                         Examiners’?

                         Question 6: Does either the Board of Medical Examiners or the
                         Board of Nurse Examiners have authority to regulate unlicensed
                         persons providing professional nursing care Mder that exemp-
                         tion?

                         Question 7: Does either the Board of Medical Examiners or the
                         Board of Nurse Examiners have authority to regulate physicians
                         controlling, supervising or instructing inlicensed persons
                         providing professional nursing care under that exemption?

                     Article 4528 of cow= exempts “acts done under the control or supervision or at
               the instruction of one licensed by the Texas State Board of hledical Examiners.” The
               Board-of Nurse Examiners has no jurisdiction over an unlicensed person functioning
               within this exemption.
                     The Board of Medical Examiners has ‘the power to regulate the supervising
               physician who delegates the performance of health services. See Thompson v. Texas
               State Board of Medical Examiners, supra. It could indirectly raate   the activities of
               the unlicensed person by determining what medical acts may be delegated to him. If
               the unlicensed person performs nondelegable medical acts, hs would be practicing
               medicine without a lioense. The Board of Medical Examiners could sue him to enjoin
          .    his unlawful practice of medicine. V.T.C.S. art. 4509. k    Ashby v. Board of Medical
               Examiners of Texas, 142 S.W. 2d 371 (Tex Civ. App. - Austin l940, writ reTd). The
               unlicensed person working under a physician% supervision is therefore accountable to
               the board when he performs medical services which may not be delegated.

                     You next ask:
                           Question 8: Is the physician controlling, supervising or instruct-
                           mg unhcensed persons providing professional nursing care under
                           that exemption legally liable for the acts of those persons?
                      In our opinion, the supervising physician may have legal 1iabBity for the acts of
                these persons. The Bability of a physician for the negligence of others is determined
                by examining the principle of agency law. Spaxer v. Worlev Hospital, Inc;, 547 SW.
                2d 562 (Tex I9771 The master is liable for the torts of his servant committed in the
                course of his employment Newspapers, Inc. v. Love, 380 S.W. 2d 562 (Tex. 1964). The
                master’s vicarious liability for his employee’s torts is bssed upon his right to control
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                      Honorable Chet Brooks - Page Pive      (Ml+319)




                      the details of the work rd, The supervisingphysician need not be the actual employer
                      of the servant in order to be viceriou~y liable for~his torts, so lwg as he has the right
                      to control the details of the work Sparger v. Worley Hospital, inc., s_upra. The
                      physician who controb, superviass, or instructs unlicensed persons providmg nursing
                      care tmder the article 4529 exemption has the right to control the details of their
                      work. The tnlicensed person can perform nursing acts cnly with a physician%
                      cooperation, which may be conditioned upon control of the details of the work. A prior
                      opinion of this office 8tated that article 4528 required the responsible physhzian to
                      personally assume control and supervision of the employee or instruct him in what is to
                      be done, and remain reasonably available to see the nursing acts are properly
                       performed. Attorney General Opinion H-395 (1974). Thug the supervising physician
                       not only has the power to control the details of the work, but he is responsible for
                       seeing that it is properly done. In enacting this exemption, the legislature may have
                       had b mind that the protection to the public afforded by a rays& license was
                       tnnecesssy where a licensed physician was responsible for the performance of nursing
                       acts We believe that physicians supervising unlicensed persons under the article 452%
                       exemption will ordinarily be liable for the acts of those persons.
                            Your next three questions relate to portion of Rule 386.17.00.004, which reads in
              .       pertinent part as follows:
                                     .004. Scope of Standing Orders, Providing the, authorizing
     ._. L.                       physician Is satisfied as to the ability and competence of those
              -_                  for whom the, physician is assuming responsibility, and with due
                                  regard for the’safety of the patient and in keeping with sound
                                  medical practice, standing delegation orders may be authorized
                                  for the performance of duties which do not require the exercise
                                  of independent medical judgment and may include authority to
                                  undertake the following:

                                   . ...

                                      ‘(4) the administration or providing. of drugs ordered by
                                   direct personal or voice communication by the authorizing
                                   physician who &all assume responsibility for the patient’s
                                   welfare, providing such administration or provision of drugs
                                   shall be in compliance with other state or federal laws, end
                                   providii    father that presigned prescriptions &all not be
                                   utilized by the authorizing physician except under the following
                                   conditions:
                                          (A)the prescription shall be prepared in full compliance
                                   with Section (2)g, Article 4476-l4, Vernon% Annotated Civil
                                   Statutes (the Texas Dangerous Drug Law), except for the
                                   inclusion of the name of the patient and date of insuance;
                                          fB) the prescription   shall be for one of the following
                                   classes or types of drugs
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     Xonorable Chet Brooks - Page Si         (Mw-318)



                          (I)     oral contraceptives;
                          (ii)    diaphragms and contraceptive creams and jelliee;
                          (iii)   topical anti-infectives for vaginal use;
                          (iv)    oral anti-parasitic drugs for treatment ot pin-
                                  worms;
                          (v) topical anti-parasitic drugs;
                          (vi) rz~~t~c     diugs for treatment        of venereal
                                       i
                       (C)the prescriptiolrs may not be Issued for any controlled
                substance;

                      (D) the providing of the drugs shall be in compliance with
                the Texas Pharmacy Act and ales adopted by the Texas State
                Board of Pharmacy;

                    (5) the administration of immunization vaccines providing
                the recipient is free of any condition for which the immuniza-
                tion is contraindicated;

                    (6) the providing of information regarding hygiene and the
                administration or providing of medications for health problems
                resulting from a lack of hygiene, including the institution of
                treatment for conditions such as scabies, ringworm, pSnworm,
                had lice, diaper rash, and other minor skin disorders provided
                the administration or providing of drugs adheres to the
                provisions of Rule .004(4) of this rule;

                     (7) the provision of services and the administration of
                 therapy by public health departments as officially prescribed by
                 the Texas Department of Health for the prevention or treat-
                 ment of specific communicable diseases or health conditions for
                 which the Texas Department of Health is responsible for control
                 under state law;

                     (8) the issuance of medications which do not require a
                 prescription (over the counter medications) for the symptomatic
                 relief of minor illnesses provided that such medications are
                 packaged and labeled fn compliance with state and federal laws
                 and regulations. 5 Ter Reg. 1390 (1980)
            You ask
                  Question 9: To the extent sections (4). (S), (6), (7) and (9) of
                  Rule .004 permit the providing of medications without a
                  prescription for the individual patient, did the Board of Medical
                  Examiners exceed its statutory authority?
     Honorable Chet Brooks - Page Seven       (taW-318)




           As will be shown by the discussion below, we believe that section (4) does not
     permit the providing of medications without a prescription for the individual patient.
     ln Attorney General Opinion H-1295 (l978), this office stated that as a general Nle,
     “the provision of medication pursuant to standing orders, without a physiciank
     prescription for the individual patient, would constitute the practice of medicine. . . .”
     The opinion did not address whether some medications might provide an exception to
     the general nrle.

            We interpret section (4) of Rule .004 as requiring the physician to decide that a
     particular course of medication should be applied to an individual patient. In cases
     where the ~ysiciank agent was to administer the medication to the patient, no
     written prescription would be needed, and the physicians verbal order to administer
     the substance could constitute a “prescription for the individual patient” as required by
     Attorney General Opinion H-1295. Prescriptions may, in some cases, be phoned into a
     pharmacy by a physician’s agent, see article 4476-14;section 2(g), V.T.C.S., and the
     physician in such cases may verba&?nstruct       his agent to make the calt Section (4)
     does permit a physician to order medication without having seen the patient. This mle
     is broad and one can easily posit illegal eppli&iOns of it. For instance where the
     physician could not diagnose the illness and prescribe medication without seeing the
     patient and the assistant actually decided what medication to use, the assistant would
     be practicing medicine without a license.         However, there are many permissible
      applications, for example, where the physician can make a diagnosis based on test
      reports and examination findings, or where the patient has been under his care
-.    previously and needs treatment for a recurring condition. We find no absolute
      prohibition against a physician’s prescribing for someone without seeing him, although
      under some circumstances this could constitute unprofessional conduct or malpractice.
      Cf. Simmons v. State, 353 S.W. 2d 215 (Tex. Grim. App. 1962) (prescription obtained
      through a telephone call).

            Therefore, we believe that section (4) of Rule .004 does not permit the providing
      of medications   without a prescription for the individual patient. Section (6) of Rule
      -004 requires that the administration of drugs adhere to the provisions of Rule .004(4);
      thus section (6) does not permit the providing of medications without a prescription for
      the individual patient.

            Section (5) of Rule .004 permits the administration of immunization vaccines
      providing the recipient is free of any condition for which the immtmization is
      contraindicated.   No provision is made for prescription for individual patients. We
      believe a qualified non-physician may administer immunizations even though his
      supervising doctor has not ma& individual determinations as to each person’s need for
      the vaccine. The non-physician has not engaged in the practice of medicine as defined
      by article 4510 and 45lOa. He has not diagnosed or treated any disorder, physical
      deformity, or injury. The immrslization is given to a healthy person, to prevent him
      from getting a disease. We believe a non-physician may also determine that a person
      is free from conditions for which vaccine is contraindicated, if he can obtain that
       information by questioning the person without having to diagnose any illness himself.

             The administration   of a prescription vaccine must comply with the Dangerous
       DN~S Act, article 4476-14, V.T.C.S. The act regulates the possession and distribution
     .a         -..
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                  Honorable Chet Brooks - Page Eight          Ww-318)




                  of prescription drugs as well ra other specifically
                                                                  named drugs Section 2. It permits
                  physician and their agents and employees to possess dangerous drugs for use in their
                  practice or the performance of their official &ties.   Thus, a non-physician could
                  administer vaccine in compliance with the Dangerous Drug Act if he did so es the
                  agent or employee of a physician in hi practice or in the performance of official
                  duties.

                            %eeiton ‘(7) of Rule 364 applies to a broad range of health services provided
                      tmder the authority of the Department of Health. Unlike section (41, this section
                      would permit non-physicians to provide medications to a patient without a doctor%
                      prescription   There certainly are legal applications of this rule, such es the provision
                      of prescription immunizations.

                            However, public health departments do provide services and treatment which
                      could not legally be provided on standing orders without a doctork prescription. Public
                      health departments treat tuberculosis, see article 4437a, section 6A, V.T.C.S., but we
                      do not believe every kind of treatment G that disease may be administered without a
                      doctor’s prescription. Rule .904, however, limits the use of standing delegation orders
                      to the performance of duties which do not require the exercise of independent medical
                      judgment. The inclusion of this limitation is necessary to insure that Rule ,004 is
                      consistent with the Medical Practice Act, and that the Board of Medical Examiners did
                      not exceed its statutory authority by enacting it.

                            Section (8) involves only over-the-counter drugs; thus the prohibitions of the
                      Pharmacy Act and the state drug laws are not relevant here. The provision of non-
                      prescription &ugs to treat a disease, disorder, or injuries for compensation may
                      constitute the practice of medicine. -See V.T.C.S. art. 4510.

                                  Question 10: Is the use of.presigned prescriptions permitted by
                                  the pharmacy and drug laws of this state and if so, &es the
                                  Board of Medical Examiners or the Pharmacy Board have the
                                  authority to regulate the use of such presiped prescriptions?

                              No provision of the pharmacy or drug laws of this state prohibits the use of a
                       presigned prescription. Each board would have some authority to regulate the use of
                       presigned prescriptions by its practitioners, for example to prevent use of unsigned
                       prescriptions under circumstances that would constitute tmprofessional conduct or a
                       violation of the law. V.T.C.S. art. 4505,4506, 4542a, S12. Rule .004(4) of the board’s
                       NkS    allows for the administration or providing of drugs under certain conditions. You
                       Ask
                                   Question 11: Under the drug laws and Pharmacy Law ES
                                   currently enacted, what acts can a non-physician legally do that
                                   could be said to constitute the ‘providing’of drugs?
                       To “provide” is commonly used interchangeably with supply or furnish. Webster’s Third
                       New International Dictionary la27 (l96B.
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                               Honorable Chet Brooks - Page Nine            (m-319)



                                         Article 45421, V.T.C.S., states in partr

                                                    It shall be unlawful for any person who is not a reglstered
                                                pharmacist under the provisions of this Act to compound, mix,
                                                manufacture, combine, prepare, label, sell, or distribute at
                                                retail or wholesale any drugs or medicines, except in original
                                                packages. . . . (HI owever, . . . nothing in this Act shall apply to
                                                or interfere with any licensed practitioner of medicine. . . who
                                                shall supply his or her patients, es a physician, dentist, or
                                                chkopJdist, and by them employed as such, with such remedies
                                                as he or she may desire. . . . Section 0.

                                Under this provision, a non-physician          may provide drugs or medicines in original
                                pa&ages.

                                       The Dangerous Dntgs Act defines prescription to include a telephone order, in
                                 cases of emergency, by a physician’s agent designated in writing to the pharmacist.
                                 V.T.C.S. art 447644, S2@. A non-physician under this language may provide drugs to
                                 a patient b calling in a prescription.’ The agents and employees of physicians may also
                                 possess dangerous drugs for ube in the practice. V.T.C.S. art 4476-l4, S4

                                       The Cantrolled Sbtances       Act permits the administration of a controlled
            -.
                                 substance to a patient by a physician’s a ent or employee when done in the physician’s
                      -.
                                 presence. V.T.C.S. art. 4476-15, SSl.O2($ (A), 3.03. In addition, the agent or employee
                                 of a registered dispenser of a controlled substance may possess controlled substance if
                                 actiq in the usual course of business

                                          Other statutes authorize non-physicians to “provide” drugs        A nurse may
                                     administer medications or treatments as prescribed by a licensed physiCian or dentist.
                                     V.T.CS. art. 4518, SS(c). & Attorney’ General Opinions H-1295 (1978); H-737 (l975L
                                     Someone who is not licensed as a nurse may administer medications under the control
                                     and supervision of a physician. V.T.C.S. art. 4526; Attorney General Opinion H-27
                                     W73).
                                           Rule .003 of the ~1s provides as follows:

                                                      903.    Exclusion from Rules. These ~1s shall mt be
                                                 applicable mr shall they .restrict the use of pm-established
                                                  programs of health care, nor shall they restrict physicians from
                                                  authorizing the provision of patient care by use of pre-
                                                  established programs under the following circumstances: 5 Tex.
                                                  Reg. 1339 (l98OL

                                     The circumstances listed include, for example, care rendered as part of disaster relief
                                     when charges for the services are not made, and care rendered by an institution with
                                     an organized medical staff which has approved standing &legatees orders You ask
                                     the following questions about these exclusions:
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              Honorable Chet Brooks - Page Ten           (Rw-318)



                             Question 12: k Rule .003 to be construed as a positive grant of
                             authorrty to use ktanding delegation orders,’ ‘standing medical
                             orders’ and other ‘preestablished health care pKgrams’Zm the
                             circumstances listed and if so, what are the legal restrictIons, if
                             any, on the use of ‘standing delegation orders,‘%tanding medical
                             orders’ and other ‘preestablished health .care programs’ in the
                             circumstances listed?

                             Question 13: Can persons ftmctioning under one             Of   the
                             exclustors listed in Rule .003 of the board’s Nk            provide
                             medications not prescribed for an individual patient?

                             Question 14: Does the prohibition in Rule .005 concerning the
                             ‘exercise of independent medical judgment’ apply to the
                             exceptions identified in Rule .003?

                              Question 15: Does Rule .003(l) unconstitutionally discriminate
                              against physiciaro who practice in private officea or in clinics
                              where the patient is not institutionalized or which do not have
                              an organized medical staff2

                          In cur opinion, Rule .003 merely means that the Board of Medical Examiners has
                   not addressed the delivery of medical care under the circumstances listed. Physicians
                   delegating the performance of medical services under those circumstances must
                   comply with the Medical Practice Act itself, as must every physician They are not
                   limited by the board’s rules under question, nor do they have the guidance provided by
                   such ~1s for physicti       working in settings where the ~lrz do apply. Thus, persons
                   ftnctioning tmder one of the exclusions may provide medications to the extent
                   permitted by the Medical Practices Act, the Pharmacy Act, the Dangerous DNgs Act,
                   and the Controlled Substances Act. Since we do not constnre Rule .003 as a positive
                   grant of authority to any class of physicians, we do mt believe it violates the equal
                    protection clauses of the United States and Texas Constitutions by singling out one
                    class of persons for benefits See also Thompsxt v. Board of Medical Examiners, supra.
                        We need not answer your two remaining questions, which are premised on the
                   assumption that Rule .003 provides exemptions for those persons which it enumerates.

                          You have attached appendices A, B and C describing specific fact situations in
                   which standing delqation orders might be used. You ask whether such orders may
                   legally be used tmder those circumstances. However, since these questions require the
                   resolution of fact questions, which cannot be done in sn Attorney Gmeral Opinion, we
                   will mt answer them.
                                                         SUMMARY
                                   The Board of Medical Examiners has implied statutory
                               authority to regulate the delegation of medical acts to non-
                               physicians. Board ales which use the terms “in keeping wjth
             Honorable Chet Brooks - Page Eleven     (Nh’-316)



                        sound medical practice” and %dependent medical judgment”
                        are mt therefore mid for vagueness. Under certain ckcum-
                        stances, the Board of Medical Examiners has authority to
                        rqulate    the activities of an tmlioensed pemon performing
                        health services tmder the supervision of a physician.         A
                        physician supervising an tmllcensed person providing medical
                        care tnder article 4526, V.T.C.S., will ordinarily be liable for
                         the acts of that person. The use of presigned prescriptions is
                         mt prohibited by the pharmacy and drug laws of this state.
                         Rule 386.17.00.004 promulgated by the Board of Medical
                         Examiners does mt attempt to authorize the practice of
                         mediclne by non-physicians. Rule 386.17.00.003 of the board
                         does mt constitute a Srant of authority to anyone or a
                         limitation of anyone’s authurity to use standing obligation
                         orders.




                  _.
                                                          MARK      WHITE
_   -                                                     Attorney General of Texas
        -_
              JOHN W. FAINTER, JR.
              First Assistant Attorney General

              RICHARD E. GRAY IB
              Executive Assistant Attorney General

              Prepared by Susan L. Garrison
              Assistant Attorney General

              APPROVED:
              OPlNION CGMMD’TEE

              Susan L. Garrison, Chairman
              Ride Gilpin




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