September 19, 1989
Louise Waddill, R.N., Ph.D. Opinion No. JM-1096
Executive Secretary
Board of Nurse Examiners Re: Whether a nursing 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 the provisions of what is now subchapter F
of chapter 242 of the Health 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 the person:
(1) holds a.license under state law
that authorizes the person to administer
medication; or
1. You refer in your 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is repealed and its provisions recodified without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 (no substantive change
intended), 1, at 2476 (codification of provisions of section
7B of article 4442~). We will refer in this opinion to the
provisions in question 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 7B to article 4442~. You refer,
and in the following discussion we will 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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Louise Waddill, R.N., Ph.D. - Page 2 (JM-1096)
(2) holds a permit issued under
Section 242.154 and acts under the
authority of a person who holds a license
under state law that authorizes the person
to administer medication.
You say that institutions covered by chapter 242 have
in the past provided settings for clinical training of
nursing students and persons undergoing training as
medication aides.2 You ask whether the provisions of
chapter 242, subchapter F, prevent such a person from
administering medications under supervision to residents of
these institutions as part of his training unless he holds
the license or permit referred to in subsections (1) and (2)
of section 242.151.
You argue that by the addition of the provisions of
what is now subchapter F the legislature intended to provide
for ongoing oversight of unlicensed persons administering
medications in chapter 242 ‘institutions, in view of problems
and abuses encountered with respect to administration of
medications in such facilities by unlicensed persons. See
Bill Analysis, 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 of what is
now subchapter F, to limit the administration of medications
by nursing students under supervision to residents of
chapter 242 institutions as part of the clinical training
component of the students' curriculum. You also argue that
medication aide trainees should not be prevented by sub-
chapter F from administering medications to such institu-
tions' residents as part 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 a person may not administer medication to a resident of
a chapter 242 institution unless he holds a license or
permit as provided for in the section. We do not think that
such general provisions as those of article 449533, section
3.06(d), that a physician may delegate medical acts,
administration of drugs r etc., to "any qualified and
2. The term winstitutionll as used in chapter 242 is
defined in some detail in section 242.002(6); u
section 242.003 (exemptions).
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Louise Waddill, R.N., Ph.D. - Page 3 (JM-1096)
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 the person in question be a nursing
student, a medication aide trainee, or otherwise, we find no
exception in chapter 242 or elsewhere in Texas law to the
requirement of section 242.151 that a person have the
necessary license or permit in order to administer
medications in a chapter 242 institution.3
3. We would also note, in respect to your question
whether the provisions of what is now subchapter F, chapter
242, Health and Safety Code, prohibit the administration of
medication in chapter 242 institutions without a license or
permit as provided there, that prior to its codification 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., 1st C.S., ch. 2, § 1,
at 49. With the addition of the more detailed permit
requirements of section 7B of article 4442~ in 1983, the
quoted provisions of section 7(a)(8) became redundant and
accordingly are merged in the 1989 Health and Safety Code,
with the recodified provisions of section 7B of article
4442c, in subchapter F of the code. Acts 1989, 71st Leg.,
ch. 678, § 1, at 2477 (section 7(a)(8) indicated as part of
source law for provision of section 242.154 that the
Department of Health shall issue a permit to persons who
meet requirements adopted under subchapter F).
It would 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 they must have completed a state approved
training program in medication administration in order to
administer medications in the nursing 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 7B to article 4442~ (now subchapter F of
chapter 242 of the code), indicates that current law in 1983
already empowered "the Texas Department of Health to all;;
for . . . the administration of certain medications
(Footnote Continued)
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Louise Waddill, R.N., Ph.D. - Page 4 (JM-1096)
We do note that the provisions of subchapter F allow
the Board of Health and Department of Health some flexi-
bility 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 to prepare and conduct examinations for permit
applicants. Section 242.155 requires the board to set a fee
in connection with permit applications.
Currently, board rules promulgated under subchapter F
require, inter ahaa completion of an approved training
program consisting oi 100 classroom hours and 40 hours of
clinical experience in order to obtain a permit. 25 T.A.C.
5 145.256 (1983). Notably, the rules currently exempt
unlicensed or unregistered nursing school graduates from the
training component of the permit requirements. Id.
5 145.252. It would appear that the board would also have
authority under subchapter F to adopt rules under which, for
example, completion of certain portions of a nursing 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 a person 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." Bill Analysis, H.B. 1753, 68th Leg. (1983).
See [Health Safety Code] 5 242.002(l), (2)
(prov4dinfihat the te:i "boardl* and "department" as used
in chapter 242 refer respectively to the Board of Health and
Department of Health). 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 depart-
ment." L at 2239.
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Louise Waddill, R.N., Ph.D. - Page 5 (JM-1096)
.
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 sub-
ject 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 by William Walker
Assistant Attorney General
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Untitled Texas Attorney General Opinion
Combined Opinion