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JOHN L. HILL 

lttorney General 

The Attorney General of Texas 

December 19, 1978 

Honorable Chet Brooks Opinion No. H- 12 95 

Chairman 

Senate Committee on Human Resources Re: Authority of a nurse pracState Capitol titioner to perform services 

Austin, Texas 187ll under indirect physician supervision. 

Dear Senator Brooks: 

You ask several questions about the health care services which an 

advanced nurse practitioner may provide. Your request is prompted by the 

enactment of P. L. 95-210, the Rural Health Clinic Services Act, 91 Stat. 1485 

(codified, in scattered sections of 42 U.S.C. SS 1395-1396i1, which permits 

medicare and medicaid reimbursement for services rendered by physicians’ 

assistants and nurse practitioners who operate under indirect physician 

supervision. 

You first ask whether an advanced nurse practitioner, defined by the 

State Board of Nurse Examiners as “a professional nurse, currently licensed in 

the State of Texas . . . [with] knowledge and skills obtained through an 

advanced educational program accredited by the Board,” may perform the 

following services outside the physicial presence of a supervising physician: 

a. Take a patient’s medical history 

b. Perform a physical examination 

c. Do an assessment of health status 

d. Identify deviations in health status 

e. Institute a physician’s order for certain simple 

laboratory tests such as chemical examinations of 

urine or blood 

The Board of Nurse Examiners establishes standards for programs which 

prepare professional nurse practitioners and other professional nurses. 

V.T.C.S. art. 4518, S 1. It licenses persons who practice “professional 

nursing,” defined as follows 

the performnncc for compensnlion of any nursing act 

(a) in the obscrvntion, care nnd counsel of the ill, 

injured or infirm; fb) in the maintenance of health or 

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Honorable Chet Brooks - Page 2 (11-1295) 

prevention of illness of others; (c) in the administration of 

medications or treatments as prescribed by a licensed 

physician or dentist; (d) in the supervision or teaching of 

nursing, insofar as any of the above acts require substantial 

specialized judgment and skill and insofar as the proper 

performance of any of the above acts is based upon 

knowledge and application of the principles of biological, 

physical and social science as acquired by a completed 

course in an approved school of professional nursing. The 

foregoing shall not be deemed to include acts of medical 

diagnosis or prescription of therapeutic or corrective 

measures. 

V.T.C.S. art. 4518, S 5. Thus, %ursing acts** include geoeral categories of services 

requiring specialized skill and knowledge acquired in an approved nursing course. 

The specific nursing acts an individual may perform will therefore depend in part 

upon his skill and educational background. Set Attorney General Opinion H-896 

(1976) (Board of Nurse Examiners may accredit specialty programs in nursing 

offered by colleges and universities). The board has approved educational programs 

to prepare advanced nurse practitioners and has developed guidelines for their 

practice. Board of Nurse Examiners,’ Guidelines for Advanced Nurse Practitioners 

in Expanding Roles, September, 1978. 

Advanced nurse practitioners, and other persons, may not practice medicine 

unless also licensed by the Texas Board of Medical Examiners. V.T.C.S. art. 4498; 

see V.T.C.S. art. 4504a (medical Iicensing’provisions inapplicable to “nurses who 

practice nursing only”). A person practices medicine if he diagnoses, treats, or 

‘offers to treat or cure any disease, disorder, physical deformity or injury and 

charges therefor. V.T.C.S. arts. 4510-4510a. Since “there is some overlapping of 

function between those defined as practicing ‘professional nursing’ and those 

defined as practicing medicine, ‘I Attorney General Opinion H-27 (1973), it may be 

difficult to characterize particular health services. In addition, rules promulgated 

by the Board of Medical Examiners allow a physician to delegste some functions to 

a physician’s nsqistant or other unliccnscd technician, assistant, or employee. Rule 

386.01.13001 (issued January 8, 1976). ‘I’hc physicirm musl retain supervision and 

control of the technician, assistnnt or cmploycc. !& 

Professional nursing includes acts in the observnlion of the ill and the 

maintenance of health. The statute dots not expressly require direct or on-site 

supervision by a physician. Compare V.T.C.S. art. 4512e, S 6 (physical therapist 

licensing act does not apply to hospital employee working under direct supervision 

of a physician); art. 4528 (nurses licensing law does not apply to acts done under 

control, supervision or at instruction of licensed physician); art. 8451a, § 31(c) 

(beauty culture school must be under direct supervision of licensed instructor). See 

Bizzelle v. Slate, 116 S.W.2d 385 (Tex. Crim. App. 1938); Attorney General OpiniG 

H-395, H-368 (1974) (defining “direct supervision”). Professional nurses may also 

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Honorable Chet Brooks - Page 3 (B-1295) 

administer medications and treatments on a physician’s prescription, again without 

any statutory requirement of direct supervision by the physician. The physician 

may, however, have a common law duty to provide instructions, depending on the 

nurse’s degree of skill. Annot., 63 A.L.R.Sd 1020 (1975). In a particular case, in 

person instruction may be necessary. When a physician delegates a medical 

function to a nurse or other nonphysician, he must exercise supervision and control. 

Board of Medical Examiner’s Rule 386.01.13001. See Thompson v. Texas State Board 

.~ of Medical Examiners, 570 S.W.2d 123 (Tex. Civ.App. - Tyler 1978) (physician may 

not use unlicensed person to perform acupuncture because he lacks knowledge to 

supervise); McKinney v. Tromly, 386 S.W.2d 564 (Tex. Civ. App. - Tyler 1964, writ 

ref’d n.r.e.) (administration of anaesthetic by nurse under physician’s control was 

practice of medicine by the physician). The adequacy of instruction, supervision, or 

control in particular cases involves fact questions which we cannot resolve in the 

opinion process. However, the nurse practitioner’s advanced training would operate 

in favor of decreased instruction as to nursing acts and decreased supervision as lo 

delegated medical functions. 

If an advanced nurse prnctilioner, educated in these procedures, lakes a 

medical history or performs a physical exam, he is engaging in acts of observation 

or health maintenance within Article 4518, seclions 5(a) and fb). We do not believe 

the practitioner thereby necessarily engages in medical diagnosis prohibited by 

:articles 4510-4510b. We also believe that advanced nurse practitioners may note 

health status and deviations from normal health as acts in the observation of the ill 

or maintenance of health. The guidelines issued by the Board of Nurse Examiners 

authorize them to provide these services within the limits of their educational 

preparation. However, an assessment which identifies a disease as the source of 

abnormal symptoms would in our opinion constitute medical diagnosis. It would 

therefore not be a nursing act but a medical function. 

We also believe a nurse may perform simple laboratory tests under a 

physician’s orders. Such tests may be characterized as acts to maintain health, 

within article 4518, section 5(b). They may also constitute the initial stage of 

treatment, see Provident Life and Accident-Insurance Co. v. Hutson, 305 ScW.2d 

837 (Tex. CixAoo. - Beaumont 1957. writ ref’d n.r.e.). which article 4518. section 

S(c) permits a nurse to administer as brescribed by a physician. Of course; a nurse 

should not diagnose an illness from the tests, but report the results to a physician 

for disgnosis. Attorney General Opinion WW-1511 (1962) stated that the laboratory 

tests are an integral part of diagnosis, and must therefore be performed under the 

direct control nnd supervision of 11 lirrnscd physicinn. ‘I’hc opinion did not consider 

the authorily of a professionnl nurse to perform laboratory tests, and section 5 of 

article 4518 defining professiorml run-sing hnd not yet been cnncted. See Acts 1967, 

60th Leg., ch. fi65, nt 1759. Wr do not hrlicvc the conclusion of WWml applies in 

the present case. See nlso Altorncy Gcnrr0l Opinion W W-1845 (1961) (performance 

of laboratory tests does not constitute the prrrcticc of mctlicine). 

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Honorable Chet Brooks - Page 4 (H-1295) 

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There is no statutory requirement that any of the five services you inquire 

about be performed in the presence of a supervising physician. As already noted, 

the appropriate kind of instruction depends on the facts of each case. 

You next ask whether a nurse practitioner who initiates written protocols 

developed by a physician in conformance with the federal regulations promulgated 

under P. L. 95-210 will be acting under adequate physician supervision if the 

physician is not physically present at all times, provided that he is available for 

consultation and referrals, monitors, evaluates, and directs all work performed, and 

is available at all times by telecommunications. The protocols you refer to are 

described in the regulations as patient care policies. The clinic’s health care 

services are furnished in accordance with these policies which include 

Guidelines for the medical management of health 

problems which include the conditions requiring medical 

consultation and/or patient referral, the maintenance of 

health care records, and procedures for the periodic review 

and evaluation of the services furnished by the clinic. 

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

The answer to your question depends on whether the particular protocol 

covers a nursing or medical function. If it covers a nursing function, for example 

the observation and health maintenance acts inquired about in your first question, a 

nurse may provide it without any statutory requirement of direct supervision by a 

physician, although the physician must provide adequate instruction. If the 

protocol delegates a medical function, the physician must supervise and control the 

agent’s performance. In addition, the medical function must be delegable. See 

Thompson, v. Texas State Board of Medical Examiners, -. The questions asT 

whether .a protocol covers nursing acts or medical functions, whether ~the medical 

,function is delegable, and whether adequate supervision is provided are fact 

questions. 

You finally ask whether any provision of Texas law would prohibit a nurse 

practitioner from providing medications to patients under standing and/or written 

orders. Your inquiry does not list any specific medication or order, so our answer is 

necessarily in general terms. We do not address whether some medication or orders 

might be of such a nature that they would provide an exception to the general rule. 

Article 4518, section 5 permits a nurse to administer medications as prescribed by a 

licensed physician, but expressly does not permit a nurse to prescribe therapeutic 

measures. To ‘prescribe” is defined by Webster’s Third International Dictionary as 

“to direct, designate, or order the USC of ns a rcmcdy.” See also Colgrove v. U.S., 

176 F.2d 614 (9th Cir. 1949). WC bclicvc the statutory language implies that a 

physician is to decide that medication is needed. WC bclirve our courts would 

probably hold that the prouision of medication f~rsuant to standing orders, without 

a physician’s prescription for the individual patient, would constitute the practice 

of medicine and not a nursing net. 

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Honorable Chet Brooks - Page 5 (H-1295) 

SUMMARY 

Advanced nurse practitioners may take a patient’s medical 

history, examine him, assess health status and identify 

deviations from normal health and institute a physician’s 

order for certain simple laboratory tests without the 

supervising physician being physically present. Whether a 

nurse may initiate written policies for health care when the 

physician is not present depends on the particular function 

covered by the policy. A nurse practitioner may not 

generally provide medications to patients under standing 

and/or written orders unless the physician has prescribed for 

the individual patient. 

APPROVED: 

Gpinion Committee 

p. 5109 

.