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JOHNL.HILL lttorney General 

# The Attorney General ofTexas

December 19, 1978

Honorable Chet Brooks Opinion No. H- 1295 Chairman Senate Committee onHuman 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, 91Stat. 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“aprofessional 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 ofasupervising physician:

a. Take apatient’s medical history b. Perform aphysical examination c. Doanassessment of health status d. Identify deviations inhealth status e. Institute a physician’s order for certain simple laboratory tests such as chemical examinations of urine orblood
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 asfollows

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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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 asany 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, S5. 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 bycolleges and universities). The board hasapproved 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 issome overlapping of function between those defined as practicing ‘professional nursing’ and those defined aspracticing medicine, ‘IAttorney General Opinion H-27 (1973), it may be difficult to characterize particular health services. In addition, rules promulgated bythe Board of Medical Examiners allow aphysician to delegste some functions to a physician’s nsqistant or other unliccnscd technician, assistant, oremployee. 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, S6 (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, 116S.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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administer medications and treatments onaphysician’s prescription, again without any statutory requirement of direct supervision by the physician. The physician may, however, have acommon 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 toanurse orother nonphysician, he must exercise supervision and control. Board of Medical Examiner’s Rule 386.01.13001. SeeThompson 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 bythe 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 infavor of decreased instruction asto nursing acts and decreased supervision aslo delegated medical functions.
If an advanced nurse prnctilioner, educated in these procedures, lakes a medical history or performs aphysical exam, he isengaging in acts of observation or health maintenance within Article 4518, seclions 5(a) andfb). Wedonot 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 asacts inthe observation of the ill or maintenance of health. The guidelines issuedbythe Board of Nurse Examiners authorize them to provide these services within the limits of their educational preparation. However, an assessment which identifies a disease asthe source of abnormal symptoms would in our opinion constitute medical diagnosis. It would therefore not beanursing act but amedical 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 anurse to administer asbrescribed byaphysician. Of course; anurse 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 11lirrnscd physicinn. ‘I’hcopinion did not consider the authorily of aprofessionnl nurse to perform laboratory tests, and section 5of article 4518defining professiorml run-singhnd not yet been cnncted. See Acts 1967, 60th Leg., ch. fi65, nt 1759. Wr donot hrlicvc the conclusion of WWml applies in the present case. See nlso Altorncy Gcnrr0l Opinion WW-1845 (1961)(performance of laboratory tests doesnot constitute the prrrcticc of mctlicine).

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There is no statutory requirement that any of the five services you inquire about beperformed in the presence of a supervising physician. As already noted, the appropriate kind of instruction depends onthe facts of each case.
You next ask whether a nurse practitioner who initiates written protocols developed byaphysician inconformance with the federal regulations promulgated under P. L. 95-210 will be acting under adequate physician supervision if the physician isnot physically present at all times, provided that he isavailable for consultation and referrals, monitors, evaluates, anddirects 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 inaccordance 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 andevaluation ofthe services furnished bythe clinic.
43Fed. Reg. 30529 (1978) (to becodified at 42 C.F.K. S481.9(b)(3)(h)).
The answer to your question depends on whether the particular protocol covers anursing or medical function. If it covers a nursing function, for example the observation andhealth maintenance acts inquired about inyour 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 amedical 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 .aprotocol 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 doesnot list anyspecific medication ororder, soour answer is necessarily ingeneral terms. Wedonot address whether some medication ororders might be of such anature that they would provide anexception tothe general rule. Article 4518,section 5permits anurse toadminister medications asprescribed by a licensed physician, but expressly does not permit a nurse to prescribe therapeutic measures. To ‘prescribe” isdefined by Webster’s Third International Dictionary as “to direct, designate, or order the USCof nsa rcmcdy.” See also Colgrove v. U.S., 176 F.2d 614 (9th Cir. 1949). WCbclicvc the statutory language implies that a physician is to decide that medication is needed. WCbclirve 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 anursing net.

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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 isnot 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 hasprescribed for the individual patient.

APPROVED:

Gpinion Committee

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