July 3, 1989
Robert Bernstein, M.D., F.A.C.P. Opinion No. ~~-1066
Commissioner of Health
Texas Department of Health Re: Construction of Radio-
1100 West 49th Street logic Technologist Certi-
Austin, Texas 78756-3199 fication Act, article
4512m, V.T.C.S. (RQ-1659)
Dear Dr. Bernstein:
You ask a number of questions about the Medical
Radiologic Technologist Certification Act, article 4512m,
V.T.C.S. Before we address your specific questions, we will
summarize the relevant provisions of the act.
The act creates a certification process for medical
radiologic technologists to be administered by the Depart-
ment of Health. V.T.C.S. art. 4512m, § 2.05. s. 42 U.S.C.
90 10001 - 10008 (Consumer-Patient Radiation Health and
Safety Act). A "medical radiologic technologist" *
'*a person certified under [the] Act, other than a pract?
tioner, who, under the direction of a practitioner,
intentionally administers radiation to other persons for
medical purposes." JcJ. 5 2.03(7). A t'practitioner" is 'Ia
doctor of medicine, osteopathy, podiatry, dentistry, or
chiropractic who is licensed under the laws of this state
and who prescribes radiologic procedures for other persons."
&I. 5 2.03(6). A "radiologic procedurel' is "any procedure
or article intended for use in the diagnosis of disease or
other medical or dental conditions in humans (including
diagnostic X-rays or nuclear medicine procedures) or the
cure, mitigation, treatment, or prevention of disease in
humans that achieves its intended purpose through the
emission of radiation." a. 5 2.03(5).
Your questions focus on sections 2.07 and 2.08 of the
act. Section 2.07 of the act provides:
(a) Except as otherwise provided by this
section, to perform a radiologic procedure a
person must hold a certificate issued under
this Act.
(b) A person is not required to hold a
certificate issued under this Act to perform
a radiologic procedure if the person is a
p. 5552
Dr. Robert Bernstein - Page 2 (JM-1066)
practitioner and performs the procedure in
the course and scope of the profession for
which the person holds the license.
(c) A person is not required to hold a
certificate issued under this Act to perform
radiologic procedures if the person performs
the procedures under the instruction or
direction of a practitioner if the person and
the practitioner are in compliance with rules
adopted under Section 2.08 of this Act.
(d) A person who performs a radiologic
procedure in a hospital that participates in
the federal Medicare program or that is
accredited by the Joint Commission
Accreditation of Hospitals and who h::
received appropriate instruction and training
in the use and operation of diagnostic
radiologic equipment consistent with either
the federal Medicare standards for certi-
fication of hospitals or the accreditation
standards of the Joint Commission on
Accreditation of Hospitals may perform
radiologic procedures without a certificate
issued under this Act. A hospital that
instructs and trains a person in the per-
formance of radiologic procedures shall
develop a protocol for the instruction and
training.
Section 2.08 provides:
(a) This section applies to the Texas
State Board of Medical Examiners, the Texas
Board of Chiropractic Examiners, the Texas
State Board of Dental Examiners, the Texas
State Board of Podiatry Examiners, and the
Board of Nurse Examiners.
(b) Each agency, other than the Board of
Nurse Examiners, subject to this section
shall adopt rules in accordance with the
Administrative Procedure and Texas Register
Act (Article 6252-13a, Vernon's Texas Civil
Statutes) to regulate the manner in which a
licensee of the agency may order, instruct,
or direct another person in the performance
of radiologic procedures.
(c) Rules adopted under this section
must:
(1) require a person, other than a
registered nurse, who is not certified under
p. 5553
Dr. Robert Bernstein - Page 3 (JM-1066)
this Act to register with the agency that
licenses the practitioner under whom the
person performs radiologic procedures:
(2) establish reasonable and necessary
fees to cover the administrative costs
incurred by the agency in administering a
registration program created under this
subsection:
(3) establish grounds for the suspension,
revocation, or nonrenewal of a registration
issued under this subsection:
(4) identify radiologic procedures that
are more dangerous or hazardous and may only
be performed by a practitioner or by a
medical radiologic technologist certified
under this Act:
(5) establish safety standards and
procedures for the operation of equipment
used to perform radiologic procedures; and
(6) establish standards for the training
and supervision of the operators of the
equipment.
(d) In adopting rules under Subsection
(c) of this section, an agency may take into
account whether the radiologic procedure will
be performed by a registered nurse.
(e) The Board of Nurse Examiners may
adopt rules governing registered nurses
performing radiologic procedures under
Subsections (b)l and (d) of Section 2.07 of
this Act and shall require registered nurses
performing radiologic procedures under
Subsection (b) of Section 2.07 to register
with the Board of Nurse Examiners and to
identify the practitioner ordering those
procedures. The board shall notify the
agency licensing the practitioner that the
nurse has registered with the board.
Your first question is:
1. In M-88-54 we determined that the reference to
Subsection (b) was a typographical error and should be read
as a reference to Subsection (c).
p. 5554
Dr. Robert Bernstein - Page 4 (JM-1066)
May a registered nurse who is not required to
hold a certificate under section 2.07(c) of
the Act perform radiologic procedures that
are more dangerous or hazardous as identified
in rules of the Texas State Board of Medical
Examiners, the Texas Board of Chiropractic
Examiners, the Texas State Board of Dental
Examiners or the Texas State Board of
Podiatry Examiners (collectively referred
to as 'licensing agencies') adopted under
section 2.08(c)(4) of the Act?
Under section 2.08(b) certain licensing boards are
required to adopt rules governing the manner in which their
licensees may order, instruct, or direct another person
to perform radiologic procedures. Your question is whether
a licensing board may adopt a rule under section 2.08(b)
that would prohibit its licensees from directing a
registered nurse to perform radiologic procedures that the
board has determined to be "more dangerous or hazardous."
Subsection (c)(4) of section 2.08 requires each
licensing board to "identify radiologic procedures that are
more dangerous or hazardous and may only be performed by a
practitioner or by medical radiologic technologist
certified under this Azt.." Nothing in subsection (c)(4)
would exempt registered nurses from that type of regulation.
cf. 5 2.08(c)(l) (requiring licensing boards to adopt a
registration requirement, but providing that registered
nurses are to be exempt from such registration reguire-
ments). Subsection (d) of section 2.08, however, provides:
"In adopting rules under Subsection (c) of this section, an
agency may take into account whether the radiologic
procedure will be performed by a registered nurse." We
construe that provision to give a licensing board authority
to identify a different category of procedures -- in effect,
a middle tier -- that a practitioner may direct only
certified medical radiologic technologists or reuistered
nurses to perform.2 Of course, nothing in the act would
require a licensing board to identify any such procedures.
Your second question is:
Must the licensing agencies adopt rules under
section 2.08(b) - (d) of the Act to regulate
2. We assume that the legislature intended by section
2.08(d) to indicate that a licensing agency could assume, in
general, a greater degree of competence on the part of
registered nurses than on the part of other persons to
whom practitioners would be delegating the performance of
radiologic procedures.
P. 5555
Dr. Robert Bernstein - Page 5 (JM-1066)
the licensees within a hospital described in
section 2.07(d) of the Act?
Section 2.08(b) provides that the boards that license
practitioners must adopt rules "to regulate the manner in
which a licensee of the agency may order, instruct, or
direct another person in the performance of radiologic
procedures.00 Your question is whether those rules apply
when a practitioner instructs a person working in a hospital
described in section 2.07(d) to perform a radiologic
procedure.
The language and apparent purposes of sections 2.07 and
2.08 create considerable ambiguity in regard to your
question. on its face, section 2.08(b) is subject to a very
broad interpretation. Read in isolation, section 2.08(b)
seems to say that rules promulgated thereunder apply
whenever a practitioner instructs a person to perform a
radiologic procedure, regardless of setting and regardless
of whether the person is certified or uncertified.
Considering the context, however, we do not think that the
legislature intended section 2.08(b) to apply so broadly.
Several aspects of sections 2.07 and 2.08 lead us to
conclude that rules promulgated under section 2.08(b) were
intended to be inapplicable in hospitals described in
section 2.07(d). First, section 2.07(c), which permits
uncertified persons to perform radiologic procedures at the
instruction of a practitioner, expressly refers to rules
promulgated under section 2.08. An uncertified person may
not perform radiologic procedures under section 2.07(c)
unless that person and the practitioner directing him are in
compliance with those rules. In contrast, section 2.07(d),
which deals with performance of radiologic procedures by
uncertified persons in certain hospital settings, makes no
reference to compliance with rules promulgated under section
2.08.
Furthermore, section 2.07(d) would not appear to. serve
any purpose if persons performing radiologic procedures
under section 2.07(d) were subject to the the same adminis-
trative agency rules as persons performing radiologic
procedures under section 2.07(c). Section 2.07(c) allows an
uncertified person to perform radiologic procedures if a
practitioner orders the person to do so and if the person
and the practitioner are ' compliance with rules
promulgated under section 2::8. A person performing
radiologic procedures in a hospital setting described in
section 2.07(d) would presumably be performing the procedure
at the request of a practitioner. If that person were
subject to rules promulgated under section 2.08, he would
meet the requirements of section 2.07(c) and the section
2.07(d) exception would add nothing to the section 2.07(c)
exception.
p. 5556
Dr. Robert Bernstein - Page 6 (JM-1066)
Also, the substantive rules to be promulgated under
section 2.08 have to do with safety, training, and super-
vision. Before a hospital can be accredited by the Joint
Commission on Accreditation of Hospitals (JCAH) or before it
can be approved for participation in the Medicare program,
it must meet JCAH or Medicare standards for safety,
training, and supervision in regard to radiologic
procedures. &8~ JCAH Accreditation Manual for Hospitals
(1988) ; 42 C.F.R. 482.26 (Condition of participation [for
Hospitals participating * Medicare and Medicaid]:
Radiologic services): 42 FF.R. 8 482.53 (Condition of
participation: Nuclear medicine services). Thus, rules
promulgated under section 2.08(b) would cover the same
ground as JCAH or Medicare standards and could conceivably
be inconsistent with those standards. Consequently, we
think that the section 2.07(d) exception indicates a
legislative decision that the JCAH accreditation process and
the Medicare approval process are adequate forms of quality
control of radiologic procedures in hospitals.3
In light of those factors, we conclude that rules
promulgated under section 2.08 do not apply in the settings
described in section 2.07(d).'
Your third question is:
May the rules adopted by the Board of Nurse
Examiners under section 2.08(e) of the Act
relating to registered nurses performing
radiologic procedures in hospitals under
section 2.07(d) of the Act (a) require the
registration with the Board of the registered
nurses working in such hospitals and (b)
allow registered nurses in such hospitals who
are not certified to perform the procedures
described under section 2.08(c)(4) of the
Act?
3. Also, although we are not acquainted with hospital
operating procedures, we assume that persons performing
radiologic procedures in hospitals would be hospital staff
members who would be receiving instructions from a variety
of practitioners with staff privileges. If that is the
case, it would be cumbersome for those persons to be subject
to different safety and training standards depending on what
type of practitioner instructed those persons to perform
radiologic procedures. See aenerallv ‘Snaraer -Worley
HOSD., I nc., 547 S.W.2d 582 (Tex. 1977) (d:sapproves
"captain of ship doctrine IV for surgeon in hospital operating
room).
p. 5557
Dr. Robert Bernstein - Page 7 (JM-1066)
Section 2.08(e) makes clear that the registration reguire-
ment applies only to nurses performing radiologic procedures
under section 2.07(c),4 not to nurses performing radiologic
procedures under 2.07(d). Because we have determined that
rules promulgated under subsection 2.08(c)(4) are not
applicable in hospitals described in section 2.07(d), we
need not address part (b) of this question.
You next ask:
Do the current rules adopted by the licensing
agencies and the Board of Nurse Examiners
meet the requirements of section 2.08 of the
Act?
We do not review agency rules in the opinion process, and we
are therefore unable to answer your question.
Your final question is:
Under section 2.07(d) of the Act what entity
determines whether a person 'has received
appropriate instruction and training' and
whether a 'protocol1 has been developed?
Section 2.07(d) provides:
A person who performs a radiologic pro-
cedure in a hospital that participates in
the federal Medicare program or that is
accredited by the Joint Commission
Accreditation of Hospitals and who h::
received appropriate instruction and training
in the use and operation of diagnostic
radiologic equipment consistent with either
the federal Medicare standards for certifica-
tion of hospitals or the accreditation
standards of the Joint Commission
Accreditation of Hospitals may perfoz
radiologic procedures without a certificate
issued under this Act. A hospital that
instructs and trains a person in the per-
formance of radiologic procedures shall
develop a protocol for the instruction and
training.
4. As we noted in footnote no, 1, in Lo-88-54 we
determined that the reference to Subsection (b) in section
2.08(e) was a typographical error and should be read as a
reference to subsection (c).
p. 5558
Dr. Robert Bernstein - Page 8 (JM-1066)
To perform a radiologic procedure under section
2.07(d), a person must have received "appropriate
instruction and training" consistent with Medicare standards
or JCAB standards. You ask who is to determine whether a
person has received such training. Nothing in the act gives
any administrative agency authority to determine whether a
particular individual performing radiologic procedures in a
hospital accredited by JCAB or approved by Medicare has in
fact received appropriate training. An uncertified person
who does not have appropriate training would commit a class
B misdemeanor by performing radiologic procedures and would
be subject to criminal prosecution. V.T.C.S. art. 4512m,
B 2.13. Also, a hospital would risk losing its JCAB
accreditation or its Medicare apprrl by allowing persons
without appropriate training perform radiologic
procedures.
You also ask who is responsible for determining whether
a hospital has developed a "protocol1 for the instruction
and training of persons who perform radiologic procedures.
A medical dictionary defines lqprotocol@O as a "precise and
detailed plan for the study of a biomedical problem or for a
regimen of therapy." Stedman's Medical Dictionary (5th ed.
1982); see al Q Proof of Facts 3d: Taber's
Cyclopedic Medfcal%~ct?&y (15th ed. 1988). Therefore,
we read section 2.07(d) as requiring a hospital to have
detailed written guidelines governing training and instruc-
tion in radiologic procedures. The act does not require a
hospital to file its protocol with any agency, nor does it
require any agency to insure that a hospital has developed a
protocol.
SUMMARY
Under section 2.08 of article 4512m,
V.T.C.S., a licensing board may identify
radiologic procedures that are ogmore
dangerous or hazardous' and that only a
certified medical radiologic technologist may
perform. A licensing board also has
authority, however, to identify procedures
that only a certified medical radiologic
technologist QE a registered nurse may
perform.
Rules promulgated under section 2.08(b)
of article 4512m do not apply to persons
performing radiologic procedures in hospitals
described in section 2.07(d).
A registration requirement adopted by
the Board of Nurse Examiners pursuant to
section 2.08(e) of article 4512m would only
apply to nurses performing radiologic
procedures pursuant to section 2.07(c), not
p. 5559
Dr. Robert Bernstein - Page 9 (JM-1066)
to nurses performing radiologic procedures
pursuant to section 2.07(d).
No state agency has authority to deter-
mine whether a hospital described in section
2.07(d) is in compliance with the reguire-
ments of that section.
JIM MATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
LCUMCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P- 5560