Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAL
OF’ =XAS
Auam~. TEXAS 787ll
September 9, 1974
The Honorable Margaret L. Rowland, R. N. Opinion No. H- 395 :’
Executive Secretary
Board of Nurse Examiners for the State Re: Circumstances under
of Texas which person not licensed
55 North Interregional, Suite 101 as nurse may perform
Austin, Texas 78702 professional nursing acts.
Dear Mrs. Rowland:.
You have asked three (3) questions having to do with the performance
of nursing acts by persons not licensed under the Texas statutes regulating
the practice of professional nursing, Article 4513, V. T. C. S., et o’eq.
You first ask:
Does the definition of professional nursing in
Section 5 of 4518 [V. T. C. S. ]. taken in conjunction
with the requirement of registration in Section 4
of 4518 [V. T. C. S. ], permit one employed by a
Texas hospital to practic,e professional nursing in
Texas hospitals or eLsewhere whether or not they
.
are Mcensed by the Texas State Board of Nurse
Examiners 7
The definition of pr,ofessional nursing to which you refer reads:
‘Professional Nursing’ shall be defined for the purpose.6
of this Act as the performance for compensation of any
nursing act (a) in the observation, care and counrel of
the’ill, injured or infirm; (b) in the maintenance of
health or prevention of illness of others; (c) in the
administration of medicationr or treatmenta a#
p. 1848
, .
The Honorable Margaret L. Rowland page 2 (H-395)
prescribed by,a licensed physician or dentist;
(d) in the supervision or teaching of nursing,
insofar as any of the above acts require substantial
dalined 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, phvsical and social science as acquired
by a-complete course in an approved school of pro-
fes.sional nursing. The foregoing shall not be deemed
to include acts of medical dia.gnosis or prescription of
therapeutic or corrective measures. (Emphasis addrd)
Obviously, this definition does not encompass all nursing acts.
Some nursing acts do not require the Bame high degree of knowledge
and skill and, therefore, are not regulated by the “professional” nursing
provisions defined above,
The requirement of registration to which you refer was impoaed by
Acts 1969, p. 1571, ch. 476, and is codified as Article 4518 5 4, V. T. C. S.
It reads:
Any person practici.ng or offering to practice
Fofessional nurring in this state for compensation,
shall hereafter be required to submit evidence to the
Board of Nurse Examiners that he or she is qualified
to practice and shall be registered as provided by law.
(Emphasis added)
That same Act of the Legislature amended Article 4528, V. T. C.S.,
which now reads:
This law shall not be construed to appiy to: the
gratuitous nursing of the sick by friends; the
furnishing of nursing care where treatment is
by prayer or spiritual means alone: acts done
under the control or supervision or at the instruc-
tion of one licensed by the Texas State Board of
p. 1849
The Honorable Margaret L. Rowland page 3 (H-395)
Medical Examiners: Licensed Vocational Nurses;
the practice of registered tuberculosis nurses
certified under Article 4528b, Vernon’s Texas
Civil Statutes; nor to acts done by persons licensed
by any board or agency of the State of Texas if
such acts are authorized by such licensing statutes.
(Emphasis added)
Under the clear language of these statutes, we think the mere fact
that one is employed by a Texas hospital is insufficient by itself to exempt
anyone from the regulatory requirements applicable to professional nurring,
and we answer your firot question in the ne,gative.
Your second and third questions ask:
(2) With reference to Article 4528 [V. T. C.S.] in a
Texas hospital, can one employed by a Texas hospital
not licensed to practice professional nursing in Texas
do nursing acts ‘under the control or supervisiqn of
one licensed to practice medicine in Texas’ if a physician
is not actually present and directly controlling or super-
vising said unlicensed pe,rson?
(3) With reference to Article 4528 [V. T. C. S.], in a Texas
hoscitai, can one employed by a ‘Texas hospital not licensed
to practice professional nursing in Texas do nursing acts
wherein the person licensed to practice medicine in Texas
is not present and directly instructing euch unlicensed
person?
These two questions, in our opinion, are likewise answered by the
clear unambiguour language of the statutes, and especially the emphasi&ed
words of Article 4528, supra.
Whether the acts are performed in a hospital or elsewhere,, or by
a hospital employee or someone else, does not appear to be the controlling
The Honorable Margaret L. Rowland page 4 (H-395)
factor under the language of Article 4528; the controlling factors appear
to us to be whether the acts are done under the control or supervision of
one licensed by the Board of Medical Examiners or that they be done at
the instruction of a licensee.
In Attorney General Opinion H-368 we construed a similar statute
applicable to the practice of physical therapy and exempting from licensing
“employees performing services under the direct supervision of a physLcian
in a hospital . . . . ” We said that, in our opinion, the provision did not
require the constant physical presence of the physician and that it would
be satisfied if “the responsible physician personally trains and inatrukts
the hospital employee in the process to be employed and remains reas,onably
available to inspect, correct, and direct the work of the employee . . . . ~”
So, too, we believe that Article 4528. V. T. C: S., does not require
the constant physical presence of a physician to authorize the performance
of professional nursing acts by one not otherwise licensed to perform them,
so long as the responsible physician personally assumes control and
supervision of the employee or instructs him in what is to be done, and
remains reasonably available to see that the nursing acts are properly
performed.
SUMMARY
Hospital employment alone does not exempt one
from etatutory regulations concerning professional
nursing. It a physician ham assumed and exercises
control or supervision of an unlicensed person per-
forming professional nursing duties or has peraonally
instructed that person in the acts to be done, that
person is not precluded by the statutes governing
professional nursing from performing such pro-
fessional nursing acts.
p. 1851
The Honorable Margaret L. Rowland page 5 (H-395)
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DAVID M. KENDALL.
Opinion Committee
Chairman
lg
p. 1852