                               July   3, 1989




Robert Bernstein,   M.D., F.A.C.P.        Opinion    No.    ~~-1066
Commissioner  of Health
Texas Department   of Health              Re: Construction     of  Radio-
1100 West 49th Street                     logic    Technologist     Certi-
Austin, Texas     78756-3199              fication       Act,     article
                                          4512m, V.T.C.S.     (RQ-1659)

Dear   Dr.   Bernstein:

      You      ask   a number   of   questions   about   the            Medical
Radiologic      Technologist   Certification   Act,   article            4512m,
V.T.C.S.       Before we address your specific questions,               we will
summarize      the relevant provisions    of the act.

      The act     creates a certification         process     for    medical
radiologic    technologists     to be     administered    by  the    Depart-
ment of Health.       V.T.C.S.   art. 4512m, § 2.05.         s.    42 U.S.C.
90 10001 - 10008        (Consumer-Patient       Radiation     Health      and
Safety    Act).     A     "medical     radiologic     technologist"         *
'*a person certified      under    [the] Act, other       than a pract?
tioner,    who,    under    the     direction     of    a    practitioner,
intentionally     administers      radiation     to other     persons     for
medical purposes."        JcJ. 5 2.03(7).       A t'practitioner"      is   'Ia
doctor of     medicine,     osteopathy,      podiatry,     dentistry,       or
chiropractic    who is     licensed under the        laws of this       state
and who prescribes       radiologic    procedures    for other persons."
&I. 5 2.03(6).      A "radiologic       procedurel' is "any        procedure
or article intended for use          in the diagnosis      of disease       or
other medical      or    dental conditions       in humans        (including
diagnostic    X-rays     or nuclear     medicine    procedures)      or   the
cure, mitigation,        treatment,    or   prevention    of    disease     in
humans    that    achieves     its    intended    purpose     through     the
emission   of radiation."       a.    5 2.03(5).

       Your questions focus       on sections   2.07       and   2.08   of   the
act.    Section 2.07 of the       act provides:

                 (a)  Except as otherwise  provided by     this
             section, to perform a radiologic    procedure     a
             person must hold   a certificate   issued   under
             this Act.

                 (b) A person is not required     to hold    a
             certificate  issued under this Act to   perform
             a radiologic   procedure  if the person    is   a
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Dr. Robert   Bernstein       - Page   2    (JM-1066)




          practitioner  and   performs  the  procedure              in
          the course and    scope of   the profession              for
          which the person holds the license.

              (c) A person is not required        to hold     a
          certificate   issued under this Act to      perform
          radiologic   procedures   if the person   performs
          the   procedures    under   the  instruction      or
          direction   of a practitioner   if the person and
          the practitioner    are in compliance   with rules
          adopted under Section 2.08 of this Act.

              (d) A person        who performs       a    radiologic
          procedure   in a hospital that participates               in
          the   federal     Medicare      program      or   that    is
          accredited     by      the   Joint      Commission
          Accreditation      of    Hospitals       and     who     h::
          received appropriate        instruction      and training
          in   the   use    and    operation      of      diagnostic
          radiologic    equipment      consistent      with    either
          the federal      Medicare      standards      for    certi-
          fication of      hospitals     or   the    accreditation
          standards     of     the     Joint      Commission        on
          Accreditation       of     Hospitals       may      perform
          radiologic    procedures       without a      certificate
          issued    under     this    Act.     A   hospital       that
          instructs   and     trains a person in           the    per-
          formance    of      radiologic      procedures        shall
          develop a protocol         for    the instruction        and
          training.

Section   2.08   provides:

              (a) This section     applies     to   the   Texas
          State Board of Medical Examiners,         the   Texas
          Board of   Chiropractic    Examiners,     the   Texas
          State Board    of Dental    Examiners,    the   Texas
          State Board    of Podiatry     Examiners,   and   the
          Board of Nurse Examiners.

              (b) Each agency, other than the Board           of
          Nurse   Examiners,    subject    to   this   section
          shall adopt    rules    in  accordance     with   the
          Administrative   Procedure    and Texas     Register
          Act (Article 6252-13a,      Vernon's   Texas    Civil
          Statutes)   to regulate the     manner in which      a
          licensee of the     agency may order,      instruct,
          or direct another     person in the     performance
          of radiologic   procedures.

              (c)    Rules     adopted      under      this    section
          must:

              (1) require   a person,                other    than     a
          registered  nurse, who is not             certified     under

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Dr. Robert    Bernstein   - Page      3     (JM-1066)




        this Act   to register   with the   agency          that
        licenses   the  practitioner   under   whom          the
        person performs  radiologic  procedures:

            (2) establish      reasonable    and    necessary
        fees   to   cover     the   administrative       costs
        incurred by    the    agency in    administering      a
        registration     program     created    under     this
        subsection:

            (3) establish  grounds for the suspension,
        revocation,  or nonrenewal  of a  registration
        issued under this subsection:

            (4)   identify radiologic    procedures    that
        are more dangerous    or hazardous   and may   only
        be   performed    by  a practitioner     or   by   a
        medical    radiologic   technologist     certified
        under this Act:

            (5) establish     safety     standards       and
        procedures  for   the  operation    of   equipment
        used to perform radiologic    procedures;    and

            (6) establish        standards  for the     training
        and   supervision        of   the  operators     of   the
        equipment.

            (d)  In adopting  rules   under    Subsection
        (c) of this section, an agency may take       into
        account whether the radiologic    procedure   will
        be performed  by a registered  nurse.

            (e) The      Board   of   Nurse    Examiners    may
        adopt    rules     governing    registered       nurses
        performing       radiologic     procedures        under
        Subsections     (b)l and (d) of Section 2.07          of
        this Act and shall require registered            nurses
        performing       radiologic     procedures        under
        Subsection    (b) of Section       2.07 to    register
        with the     Board    of Nurse    Examiners    and    to
        identify    the    practitioner     ordering      those
        procedures.       The   board   shall    notify      the
        agency licensing       the practitioner      that    the
        nurse has registered      with the board.

     Your    first   question   is:




      1.   In M-88-54    we determined   that the  reference   to
Subsection   (b) was a typographical   error and should be   read
as a reference   to Subsection   (c).


                                          p. 5554
Dr. Robert    Bernstein   - Page   4     (JM-1066)




          May a registered     nurse who is not required to
          hold a certificate       under section 2.07(c)        of
          the Act    perform radiologic       procedures      that
          are more dangerous      or hazardous    as identified
          in rules of the Texas State Board of            Medical
          Examiners,   the    Texas Board     of   Chiropractic
          Examiners,   the    Texas State     Board of     Dental
          Examiners    or   the     Texas    State    Board     of
          Podiatry    Examiners      (collectively       referred
          to as    'licensing     agencies')     adopted    under
          section 2.08(c)(4)      of the Act?

      Under section      2.08(b)    certain     licensing     boards    are
required to adopt rules governing         the manner in which        their
licensees   may   order,     instruct,   or   direct     another    person
to perform radiologic      procedures.      Your question     is whether
a licensing   board    may adopt     a rule    under section       2.08(b)
that   would    prohibit      its   licensees       from   directing       a
registered   nurse to perform       radiologic    procedures    that    the
board has determined      to be "more dangerous       or hazardous."

      Subsection      (c)(4)    of    section     2.08    requires      each
licensing   board to "identify       radiologic    procedures     that    are
more dangerous     or hazardous     and   may only be performed        by   a
practitioner     or    by        medical     radiologic       technologist
certified   under    this Azt.."      Nothing in      subsection      (c)(4)
would exempt registered        nurses from that type of regulation.
cf. 5 2.08(c)(l)      (requiring     licensing     boards     to   adopt    a
registration      requirement,      but   providing     that     registered
nurses are     to be    exempt     from such     registration      reguire-
ments).    Subsection     (d) of section 2.08, however,           provides:
"In adopting    rules under Subsection         (c) of this section,        an
agency    may   take    into     account     whether    the      radiologic
procedure   will    be performed      by    a registered      nurse."      We
construe that provision        to give a licensing      board     authority
to identify a different        category of procedures       -- in effect,
a middle      tier -- that      a practitioner        may   direct      only
certified   medical     radiologic      technologists      or    reuistered
nurses to perform.2         Of course,      nothing in the act         would
require a licensing       board to identify any such procedures.

      Your   second   question   is:

          Must the licensing agencies adopt rules under
          section 2.08(b) - (d) of the Act to   regulate



      2.   We assume that the legislature       intended by    section
2.08(d) to indicate that a licensing        agency could assume, in
general,   a greater     degree of   competence      on the   part   of
registered   nurses   than    on the   part   of other    persons    to
whom practitioners    would    be delegating     the performance     of
radiologic   procedures.

                                       P. 5555
Dr. Robert    Bernstein    - Page   5     (JM-1066)




          the licensees within a hospital             described   in
          section 2.07(d) of the Act?

      Section 2.08(b) provides that          the boards that    license
practitioners    must    adopt rules     "to regulate the manner       in
which a    licensee     of the    agency    may order,   instruct,     or
direct another      person    in   the   performance   of   radiologic
procedures.00    Your    question   is whether those      rules    apply
when a practitioner      instructs   a person working    in a hospital
described    in   section     2.07(d)    to   perform  a    radiologic
procedure.

      The language and apparent purposes           of sections   2.07 and
2.08   create     considerable     ambiguity     in   regard    to     your
question.     on its face, section 2.08(b) is subject to a very
broad interpretation.         Read in     isolation,   section     2.08(b)
seems    to   say   that    rules    promulgated     thereunder      apply
whenever    a practitioner      instructs     a person to      perform     a
radiologic    procedure,    regardless     of setting and      regardless
of   whether    the     person    is     certified    or    uncertified.
Considering    the context, however, we         do not think that       the
legislature    intended section 2.08(b) to apply so broadly.

      Several aspects of       sections 2.07 and        2.08 lead us       to
conclude that rules promulgated          under section 2.08(b)          were
intended    to    be   inapplicable     in hospitals        described      in
section 2.07(d).        First,    section    2.07(c),     which     permits
uncertified    persons to perform radiologic         procedures     at   the
instruction    of    a practitioner,     expressly     refers    to    rules
promulgated    under section 2.08.        An uncertified      person     may
not perform     radiologic     procedures     under     section     2.07(c)
unless that person and the practitioner            directing    him are in
compliance   with those rules.        In contrast,     section    2.07(d),
which deals     with performance       of radiologic      procedures      by
uncertified    persons in certain       hospital    settings,    makes     no
reference   to compliance     with rules promulgated        under section
2.08.

      Furthermore,    section 2.07(d) would not appear to. serve
any purpose     if   persons     performing     radiologic    procedures
under section 2.07(d) were subject to the the same               adminis-
trative    agency    rules    as    persons    performing      radiologic
procedures   under section 2.07(c).         Section 2.07(c) allows an
uncertified    person    to perform      radiologic   procedures     if    a
practitioner    orders the person        to do so    and if the     person
and   the    practitioner       are     '   compliance      with     rules
promulgated     under    section      2::8.     A   person    performing
radiologic   procedures      in a hospital      setting    described     in
section 2.07(d) would presumably          be performing    the procedure
at the    request    of a practitioner.           If that   person    were
subject to rules      promulgated     under section      2.08, he    would
meet the    requirements     of   section 2.07(c)       and the    section
2.07(d) exception     would add      nothing to the section        2.07(c)
exception.

                                        p. 5556
Dr. Robert    Bernstein    - Page      6     (JM-1066)




      Also, the     substantive     rules    to be     promulgated      under
section 2.08 have       to do with      safety, training,       and    super-
vision.    Before a hospital        can be     accredited     by the    Joint
Commission    on Accreditation      of Hospitals      (JCAH) or before it
can be approved     for   participation       in the Medicare       program,
it   must   meet    JCAH    or    Medicare     standards      for     safety,
training,     and    supervision        in     regard      to     radiologic
procedures.     &8~   JCAH     Accreditation     Manual     for    Hospitals
(1988) ; 42    C.F.R. 482.26 (Condition          of participation         [for
Hospitals      participating         *     Medicare       and     Medicaid]:
Radiologic     services):      42   FF.R.      8 482.53      (Condition     of
participation:      Nuclear     medicine     services).        Thus,    rules
promulgated    under    section     2.08(b)     would    cover     the    same
ground as JCAH or       Medicare    standards    and could      conceivably
be inconsistent      with    those     standards.       Consequently,       we
think    that   the   section      2.07(d)     exception      indicates       a
legislative    decision that the JCAH accreditation             process and
the Medicare    approval process are adequate           forms of      quality
control of radiologic       procedures     in hospitals.3

      In light    of  those  factors, we conclude  that   rules
promulgated   under section 2.08 do not apply in the   settings
described   in section 2.07(d).'

      Your   third   question    is:

          May the rules adopted       by the Board of       Nurse
          Examiners   under    section 2.08(e)      of the    Act
          relating    to   registered     nurses     performing
          radiologic     procedures     in hospitals        under
          section 2.07(d) of      the Act     (a) require     the
          registration    with the Board of the registered
          nurses working      in   such   hospitals    and     (b)
          allow registered     nurses in such hospitals       who
          are not certified      to perform the      procedures
          described   under    section    2.08(c)(4)     of   the
          Act?




       3. Also, although we are not acquainted           with    hospital
operating    procedures,    we   assume    that    persons    performing
radiologic    procedures   in hospitals      would be hospital       staff
members who would be       receiving    instructions    from a variety
of practitioners       with staff    privileges.       If that    is   the
case, it would be cumbersome        for those persons to be subject
to different     safety and training     standards    depending   on what
type of     practitioner   instructed     those persons      to   perform
radiologic    procedures.      See   aenerallv    ‘Snaraer        -Worley
HOSD.,    I nc.,   547   S.W.2d    582   (Tex.    1977)     (d:sapproves
"captain of ship doctrine IV for surgeon in hospital            operating
room).

                                           p. 5557
Dr. Robert    Bernstein     - Page      7   (JM-1066)




Section 2.08(e) makes clear       that the registration      reguire-
ment applies only to nurses performing       radiologic   procedures
under section 2.07(c),4     not to nurses performing      radiologic
procedures   under 2.07(d).    Because    we have determined      that
rules   promulgated   under    subsection    2.08(c)(4)    are     not
applicable   in hospitals    described    in section    2.07(d),    we
need not address part (b) of this question.

     You next       ask:

          Do the current rules adopted by the licensing
          agencies and   the   Board of   Nurse Examiners
          meet the requirements   of section 2.08 of   the
          Act?

We do not review agency rules in the opinion process,                   and we
are therefore  unable to answer your question.

     Your    final    question    is:

          Under section 2.07(d) of the Act what       entity
          determines  whether    a person   'has   received
          appropriate    instruction   and  training'     and
          whether a 'protocol1    has been developed?

Section   2.07(d)     provides:

              A person     who performs      a radiologic       pro-
          cedure in     a hospital that         participates       in
          the federal      Medicare     program     or   that      is
          accredited     by     the    Joint     Commission
          Accreditation      of    Hospitals      and    who     h::
          received appropriate        instruction    and training
          in   the   use    and    operation     of     diagnostic
          radiologic    equipment      consistent    with    either
          the federal Medicare       standards    for certifica-
          tion   of   hospitals        or   the     accreditation
          standards     of     the     Joint     Commission
          Accreditation      of     Hospitals       may     perfoz
          radiologic    procedures      without a      certificate
          issued    under    this    Act.     A   hospital      that
          instructs   and    trains a person in          the   per-
          formance    of     radiologic      procedures       shall
          develop a protocol        for    the instruction       and
          training.




      4. As we   noted   in footnote   no,   1, in  Lo-88-54    we
determined  that the reference    to Subsection  (b) in   section
2.08(e) was a typographical    error and should    be read as     a
reference  to subsection  (c).

                                        p. 5558
Dr. Robert   Bernstein    - Page   8    (JM-1066)




      To   perform    a    radiologic      procedure     under     section
2.07(d),    a    person      must     have     received      "appropriate
instruction    and training"     consistent    with Medicare    standards
or JCAB standards.       You   ask who is      to determine    whether     a
person has received      such training.      Nothing in the act gives
any administrative      agency authority       to determine    whether     a
particular    individual   performing     radiologic    procedures    in   a
hospital   accredited    by JCAB or     approved by Medicare       has    in
fact received    appropriate      training.     An uncertified       person
who does not have appropriate         training would commit a class
B misdemeanor    by performing     radiologic    procedures    and    would
be subject to      criminal prosecution.         V.T.C.S.    art.    4512m,
B 2.13.     Also,    a hospital       would    risk    losing    its   JCAB
accreditation     or its Medicare      apprrl      by allowing     persons
without     appropriate       training             perform     radiologic
procedures.

      You also ask who is responsible        for determining      whether
a hospital   has   developed    a "protocol1     for the    instruction
and training    of persons    who perform radiologic        procedures.
A medical dictionary       defines lqprotocol@O as      a "precise     and
detailed plan for the study of a biomedical           problem or for a
regimen of therapy."       Stedman's   Medical Dictionary       (5th   ed.
1982); see    al Q                 Proof    of   Facts    3d:     Taber's
Cyclopedic   Medfcal%~ct?&y           (15th ed. 1988).        Therefore,
we read    section 2.07(d)      as requiring     a hospital      to   have
detailed written guidelines       governing    training   and    instruc-
tion in radiologic     procedures.     The   act does not require         a
hospital   to file its protocol      with any agency, nor does           it
require any agency to insure that a hospital            has developed     a
protocol.

                             SUMMARY

                Under section     2.08    of   article     4512m,
          V.T.C.S.,    a   licensing    board    may    identify
          radiologic      procedures      that     are      ogmore
          dangerous    or   hazardous'     and    that    only    a
          certified   medical radiologic      technologist     may
          perform.     A    licensing      board      also     has
          authority,   however,    to    identify     procedures
          that   only    a certified      medical     radiologic
          technologist     QE   a    registered     nurse      may
          perform.

                Rules promulgated   under section   2.08(b)
          of article    4512m   do not   apply  to  persons
          performing   radiologic  procedures  in hospitals
          described   in section 2.07(d).

                A registration     requirement    adopted    by
          the Board    of   Nurse    Examiners   pursuant    to
          section 2.08(e) of      article 4512m would      only
          apply    to     nurses     performing     radiologic
          procedures   pursuant   to    section 2.07(c),    not

                                       p. 5559
Dr. Robert   Bernstein     - Page     9     (JM-1066)




         to nurses   performing  radiologic             procedures
         pursuant  to section 2.07(d).

               No state agency has authority  to   deter-
         mine whether a hospital described   in   section
         2.07(d) is    in compliance with the    reguire-
         ments of that section.




                                           JIM      MATTOX
                                           Attorney General   of Texas

MARYEELLER
First Assistant      Attorney   General

LCUMCCREARY
Executive   Assistant     Attorney        General

JUDGE ZOLLIE STEAELEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Sarah Woelk
Assistant Attorney General




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