                         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is repealed     and   its   provisions   recodified    without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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