Case Information
*1 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 Safety Act). A "medical 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, podiatry, dentistry, or osteopathy, 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 humans that achieves its intended purpose through 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 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 procedure if the person is a a radiologic *2 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 the federal Medicare program or that is accredited 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 of Joint Commission on Accreditation of Hospitals perform radiologic procedures without a certificate issued under this Act. A hospital instructs and trains a person in the per- formance shall develop a protocol for the instruction 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 must:
(1) require a person, other than registered nurse, who is not certified *3 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 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 are more dangerous or hazardous and may only be performed by a practitioner or by a medical certified technologist under this Act:
(5) establish safety 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 adopt rules governing registered nurses performing procedures under Subsections (b)l and (d) of Section 2.07 of this Act and shall require registered nurses 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 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 Subsection (b) was a typographical error and should be read as a reference to Subsection (c).
May a registered nurse who is not required to hold a certificate under section 2.07(c) of the Act perform radiologic
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 Texas State Board of or the Podiatry Examiners (collectively referred to as 'licensing agencies') adopted section 2.08(c)(4) of the Act?
Under section 2.08(b) certain licensing boards required to adopt rules governing the manner in which their licensees may order, instruct, or direct another person Your question is whether to perform radiologic procedures. a licensing board may adopt a rule under section 2.08(b) its licensees from directing that would prohibit radiologic procedures that the registered nurse to perform board has determined to be "more dangerous or hazardous."
Subsection (c)(4) of 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 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 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 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 whom practitioners would be delegating the performance radiologic procedures.
P. 5555 *5 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 radiologic procedure, regardless of setting and regardless of whether 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 procedures under section 2.07(c) unless that person and the practitioner directing him are in compliance with those rules. In contrast, 2.07(d), of radiologic procedures which deals with performance 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
under section 2.07(d) were subject to the the same adminis- trative agency rules as persons performing 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 ' compliance with rules promulgated under section 2::8. A person in a hospital setting described radiologic procedures 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.
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 for safety, regard training, and supervision procedures. &8~ JCAH Accreditation Manual for Hospitals [for (1988) ; 42 C.F.R. 482.26 (Condition of participation Medicare Medicaid]: Hospitals participating * 42 FF.R. 8 482.53 (Condition Radiologic services): 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 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 in hospitals section 2.07(d) of the Act (a) require 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 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).
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 procedures under 2.07(d). Because we have determined that rules promulgated under subsection 2.08(c)(4) 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 the federal Medicare program or that is accredited the Joint Commission h:: Accreditation of Hospitals and who 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 of Joint Commission Accreditation of Hospitals perfoz without a certificate radiologic procedures issued under this Act. A hospital instructs and trains a person in the per- shall formance develop a protocol for the instruction 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). *8 radiologic procedure
To perform a 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 training radiologic without appropriate perform 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 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- The act does not require tion in radiologic procedures. 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 procedures ogmore dangerous or hazardous' and that only a certified medical radiologic technologist may licensing board perform. A also has authority, however, to identify
that only a certified medical
technologist QE a registered nurse 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 the Board of Nurse Examiners pursuant to section 2.08(e) of article 4512m would only nurses apply procedures pursuant to section 2.07(c), not *9 to nurses performing
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