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The Attorney General of Texas
December 19, 1978
JOHN L. HILL
lttorney General
Honorable Chet Brooks Opinion No. H- 12 95
Chairman
Senate Committee on Human Resources Re: Authority of a nurse prac-
State Capitol titioner to perform services
Austin, Texas 187ll under indirect physician super-
vision.
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 11lirrnscd 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)
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
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