September 19, 1989

Louise Waddill, R.N., Ph.D. Opinion No. JM-1096 Executive Secretary Board ofNurse Examiners Re:Whether anursing student 9101 Burnet Road may administer medications Suite 104 under certain conditions and Austin, Texas 78758 related questions (RQ-1782)

**Dear** Ms. Waddill:

You refer to theprovisions ofwhat isnow subchapter F of chapter 242 of theHealth and Safety Code, relating to convalescent and nursing homes and related institutions.1 Section 242.151 provides as follows:

PERMITS TO ADMINISTER MEDICATION. A person may not administer medication to a resident unless theperson:

(1) holds a.license under state law that authorizes the person to administer medication; or

1. You refer inyour request to section 7B of article 4442c,V.T.C.S. Effective September 1, 1989, article 4442~ is repealed and its provisions recodified without substantive change as part of the Health and Safety Code. Acts 1989, 71st Leg., ch. 678, 5 1, at 2230; see id. 58 13,at 3165 (repealer), 1,at 2236 (nosubstantive change intended), 1,at 2476 (codification ofprovisions of section 7Bof article 4442~). Wewill refer inthis opinion to the provisions inquestion as they are found in chapter 242, subchapter F (sections 242.151 thru 242.158) of the Health and Safety Code. Also, two different acts of the 68th Legislature added a section 7Bto article 4442~. You refer, and inthe following discussion wewill be referring to, the provisions of the section 7B added **by** House Bill No. 1753, Acts 1983, 68th Leg., ch. 940 at 5170.

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(2) holds a permit issued under Section 242.154 and acts under the authority ofaperson who holds a license under state lawthat authorizes theperson to administer medication.

You say that institutions covered **by** chapter 242 have inthe past provided settings for clinical training of nursing students medication aides.2 and persons undergoing training as You ask whether the provisions of chapter 242, subchapter 

### F, prevent such a person from administering medications under supervision to residents of these institutions aspart of his training unless he holds the license orpermit referred to insubsections (1)and (2) 

### ofsection 242.151.

You argue that by the addition of the provisions of what isnow subchapter Fthe legislature intended toprovide for ongoing oversight of unlicensed persons administering medications inchapter 242‘institutions,inview ofproblems and abuses encountered with respect to administration of medications in such facilities by unlicensed persons. See BillAnalysis, H.B. 1753, 68th Leg. (1983). You say that it is your agency's position that the legislature never intended, with the enactment of the provisions ofwhat is
now subchapter F, to limit the administration ofmedications by nursing students under supervision to residents of chapter 242 institutions aspart of the clinical training component of the students' curriculum. You also argue that medication aide trainees should notbe prevented by subchapter F from administering medications to such institutions' residents aspart of the trainees' instruction.
Despite your contentions, we decline to go beyond the plain language of section 242.151 of subchapter **F** to create exceptions to the clear requirements of those provisions: that aperson **may**not administer medication to aresident of
a chapter 242 institution unless he holds a license or permit asprovided for inthe section. We donot think that such general provisions as those ofarticle 449533, section 3.06(d), that a physician may delegate medical acts, administration of drugsr etc., to "any qualified and

2. The term winstitutionll asused in chapter 242 is defined in some detail in section 242.002(6); u section 242.003 (exemptions).

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properly trained person," provide exceptions to the requirements of subchapter F specifically applicable to chapter 242 institutions, i.e., that a person may not administer medications to such institutions' residents without the license or permit provided for by that subchapter. Whether theperson inquestion be a nursing student, amedication aide trainee, or otherwise, we findno exception inchapter 242 orelsewhere in Texas law to the requirement of section 242.151 that a person have the necessary license or permit in **order** to administer medications ina chapter 242 institution.3

3. Wewould also note, inrespect toyour question whether theprovisions ofwhat isnow subchapter F, chapter 242,Health and Safety Code,prohibit the administration of medication inchapter 242 institutions without a license or permit asprovided there, that prior to itscodification in chapter 242, article 4442c, section 7(a)(8) also provided that "all nersonneb administering medications must have completed a state-approved training program in medication administration." (Emphasis added.) These provisions were added in 1977. Acts 1977, 65th Leg., 1stC.S., ch. 2, § 1, at 49. With the addition of the more detailed permit requirements of section 7Bof article 4442~ in 1983, the quoted provisions of section 7(a)(8) became redundant and accordingly aremerged inthe 1989Health and Safety Code, with the recodified provisions of section 7B of article 4442c, insubchapter Fof the code. Acts 1989, 71st Leg., ch. 678, § 1,at 2477 (section 7(a)(8) indicated aspart of
source law for provision of section 242.154 that the Department ofHealth shall issue apermit topersons who meet requirements adopted under subchapter F).

Itwould appear that, since 1977,with the addition of the section 7(a)(8) provisions, nursing students, medication aides and other persons would have been subject to the requirement that theymust have completed a state approved training program in medication administration inorder to administer medications inthenursing and convalescent homes and other institutions now covered by chapter 242 of the code. The bill analysis for House Bill No. 1753, the 1983 act adding section 7Bto article 4442~ (nowsubchapter F of chapter 242 of the code), indicates that current law in 1983 already empowered "theTexas Department ofHealth to for
. . .the administration of certain medicationsall;;

(Footnote Continued)

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We donote that theprovisions of subchapter F allow the Board of Health and Department of Health some flexibility in establishing the requirements for obtaining a permit under the section.4 Section 242.152 provides, inter alia, that the board shall adopt rules establishing requirements for issuance, renewal, etc., of a permit: curricula to train persons to administer medications to institution residents: and standards for approval of training programs. Section 242.154(b) requires the department toprepare and conduct examinations for permit applicants. Section 242.155 requires the board to set a fee inconnection with permit applications.

Currently, board rules promulgated under subchapter F require, inter ahaa program consisting oi completion of an approved training 100classroom hours and 40hours of clinical experience inorder to obtain apermit. 25 T.A.C. 5 145.256 (1983). Notably, the rules currently exempt unlicensed orunregistered nursing school graduates from the training component of the permit requirements. Id. 5 145.252. Itwould appear that the board would also have authority under subchapter Fto adopt rules under which, for example, completion of certain portions of anursing school curriculum would fulfill the training requirements.

SUMMARY
Nursing students and medication aide trainees are subject to the requirement of chapter 242, subchapter F, section 242.151 that aperson must hold a license authorizing

(Footnote Continued) unlicensed personnel [in the subject institutions]. These individuals receive formal training through state-approved medication administrative training courses . . .and are issued an acknowledgment card as a credential of their training." BillAnalysis, H.B. 1753, 68th Leg. (1983).

See [Health (prov4dinfihat the te:i Safety Code] 5242.002(l), (2) "boardl*and "department" as used inchapter 242 refer respectively to the Board of Health and Department ofHealth). Acts 1989, 71st Leg., ch. 678, § 1, at 2462. Section 11.013 of the code provides: "The board shall adopt policies and rules and shall govern the department." L at 2239.

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the person to administer medication, or a permit issued by the Department of Health under subchapter F, in order to administer medications to residents of convalescent and nursing homes and related institutions subject to chapter 242,Health and Safety Code.

a.ti

MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOU **MCCREARY** Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared byWilliam Walker Assistant Attorney General

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