AGLO 1978 No. 12 - Mar 23 1978
NURSES ‑- MEDICINE, SURGERY AND OSTEOPATHY ‑- DRUGS ‑- EXECUTION OF MEDICAL ORDERS ISSUED BY A PHYSICIAN'S ASSISTANT
(1) It is legally permissible for a registered nurse, licensed in the State of Washington, to execute medical orders, including those for the administration of legend drugs and certain controlled substances, issued by a physician's assistant licensed under chapter 18.71A RCW before such orders are countersigned by the supervising physician.
(2) General discussion of the power of the State Board of Nursing to adopt a regulation concerning the authority of licensed registered nurses to execute such medical orders of a physician's assistant.
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March 23, 1978
Honorable R. Y. Woodhouse
Department of Licensing
Olympia, Washington 98504 Cite as: AGLO 1978 No. 12
Dear Ms. Woodhouse:
By letter previously acknowledged you have asked for our opinion on the following questions:
"1. Is it within the legal scope of the license for a registered nurse, licensed in the State of Washington, to execute medical orders, including those for the administration of controlled substances and legend drugs, issued by a physician's assistant under chapter 18.71A RCW, before such orders are countersigned by the supervising physician?
[[Orig. Op. Page 2]] "2. Is it within the powers of the Board of Nursing, as defined in RCW 18.88.080, to adopt a regulation concerning the authority of licensed registered nurses to execute such medical orders of a physician's assistant?"
We answer your first question in the affirmative and respond to your second in the manner set forth in our analysis.
RCW 18.88.285 provides, in material part, as follows:
"A registered nurse under her or his license may perform for compensation nursing care (as that term is usually understood) of the ill, injured or infirm, and in the course thereof, she or he is authorized to do the following things which shall not be done by any person not so licensed, except as provided in RCW 18.78.182:
"(1) At or under the general direction of a licensed physician, dentist, osteopath or chiropodist (acting within the scope of his or her license) to administer medications, treatments, tests and innoculations, whether or not the severing or penetrating of tissues is involved and whether or not a degree of independent judgment and skill is required.
". . ."
Similarly, in RCW 18.88.030, the statutory definition of the practice of nursing includes the following:
". . .
"(5) The executing of medical regimen as prescribed by a licensed physician, osteopathic physician, dentist, or chiropodist.
". . ."
[[Orig. Op. Page 3]] Also pertinent is RCW 18.88.290 which reads as follows:
"It shall not be a violation of chapter 18.71 RCW, or chapter 18.57 RCW, for a registered nurse, at or under the general direction of a licensed practitioner of medicine and surgery, osteopathy, or osteopathy and surgery (within the scope of his license), to administer prescribed drugs, injections, inoculations, tests, or treatment whether or not piercing of tissues is involved."
Chapter 18.71 RCW and chapter 18.57 RCW, to which reference is thus made, relate, respectively, to the practice of medicine and of osteopathy. Thus clearly, on the basis of these several segments of chapter 18.88 RCW, a licensed registered nurse may lawfully execute medical orders, including those for the administration of controlled substances and legend drugs, issued directly by a licensed physician or osteopathic physician. And likewise, RCW 69.41.010(10) and RCW 69.41.030 (in the case of legend drugs), together with RCW 69.50.101 (in the case of controlled substances) expressly authorize those two classes of medical practitioners (among others) to administer such drugs. Your question, however, is whether a licensed registered nurse may likewise execute such medical orders,
". . . issued by a physician's assistant under chapter 18.71A RCW,before such orders are countersigned by the supervising physician?"
The basic reason for your inquiry, as we understand it, is that physician's assistants are nowhere expressly referred to in any of the statutes which we have thus far cited in this opinion ‑ either from the standpoint of what a licensed registered nurse may lawfully do or from that of who may lawfully prescribe or administer legend drugs or controlled substances. In our considered opinion, however, neither of these omissions necessitates a negative answer to your question.
Legislative recognition of physician's assistants was first made in this state by the enactment of §§ 1-6 of chapter 30, Laws of 1971, 1st Ex.Sess., since codified as chapter 18.71A RCW.1/ As defined in RCW 18.71A.010, the term "physician's assistant" means:
[[Orig. Op. Page 4]] "(1) 'Physician's assistant' means:
"(a) A person who is enrolled in, or who has satisfactorily completed, a board approved training program designed to prepare persons to practice medicine to a limited extent; or
"(b) A person who is a university medical graduate of a foreign medical school or college.
". . ."
It is to be noted, however, that chapter 18.71A RCW is not a licensing law but, instead, is simply a regulatory statute governing those persons who work as physician's assistants in accordance with the provisions thereof. Among those provisions is RCW 18.71A.020 which relates to the Washington State Board of Medical Examiners (a state agency) and reads as follows:
"The board shall adopt rules and regulations fixing the qualifications and the educational and training requirements for persons who may be employed as physician's assistants or who may be enrolled in any physician's assistant training program.
"The board shall, in addition, adopt rules and regulations governing the extent to which physician's assistants may practice medicine during training and after successful completion of a training course. Such regulations shall provide:
"(1) That the practice of a physician's assistant shall be limited to the performance of those services for which he is trained; and
"(2) That each physician's assistant shall practice medicine only under the supervision and control of a physician licensed in this state, but such supervision and control shall not be construed to necessarily require the personal presence of the supervising physician at the place where services are rendered."
[[Orig. Op. Page 5]] In a similar vein, RCW 18.71A.030 then goes on to provide that:
"A physician's assistant as defined in this chapter may practice medicine in this state only after authorization by the board and only to the extent permitted by the board. A physician's assistant shall be subject to discipline under chapter 18.72 RCW."
And finally, insofar as is here material, RCW 18.71A.060 expressly precludes a physician's assistant from performing certain other health care services, as follows:
"No health care services may be performed under this chapter in any of the following areas:
"(1) The measurement of the powers or range of human vision, or the determination of the accommodation and refractive state of the human eye or the scope of its functions in general, or the fitting or adaptation of lenses or frames for the aid thereof.
"(2) The prescribing or directing the use of, or using, any optical device in connection with ocular exercises, visual training, vision training or orthoptics.
"(3) The prescribing of contact lenses for, or the fitting or adaptation of contact lenses to, the human eye.
"(4) Nothing in this section shall preclude the performance of routine visual screening.
"(5) The practice of dentistry or dental hygiene as defined in chapters 18.32 and 18.29 RCW respectively. The exemptions set forth in RCW 18.32.030, paragraphs (1) and (8), shall not apply to a physician's assistant.
"(6) The practice of chiropractic as defined in chapter 18.25 RCW including the adjustment or manipulation of the articulations of the spine.
"(7) The practice of podiatry as defined in chapter 18.22 RCW."
[[Orig. Op. Page 6]] Next to be noted is an administrative regulation which has been promulgated by the State Board of Medical Examiners under the authority of RCW 18.71A.020, supra. We have reference to WAC 308-52-135 which was adopted by the board on March 11, 1977, and reads as follows:
"A physician's assistant may issue written or oral prescriptions as provided herein when approved by the board and assigned by the supervising physician.
"(1) Except for schedule two controlled substances as listed under federal and state controlled substances acts, a physician's assistant may issue prescriptions for a patient who is under the care of the physician responsible for the supervision of the physician's assistant.
"(a) Written prescriptions shall be written on the blank of the supervising physician and shall include the name, address and telephone number of the physician. The prescription shall also bear the name and address of the patient and the date on which the prescription was written.
"(b) The physician's assistant shall sign such a prescription by printing the name of the supervising physician, signing his or her own name followed by the letters 'P.A.' and registration number.
"(2) A physician's assistant employed or extended privileges by a hospital, nursing home or other health care institution may, if permissible under the by-laws, rules and regulations of the institution, write medical orders, except those for schedule two controlled substances, for inpatients under the care of the physician responsible for his supervision. In every case, medical orders so written shall be countersigned by the supervising physician within forty-eight hours, but such countersignature shall not be required prior to the execution of any such order.
[[Orig. Op. Page 7]] "(3) To be authorized to issue prescriptions for schedule three through five controlled substances, a physician's assistant must be registered with the board of pharmacy and the drug enforcement administration.
"(4) The registration of a physician's assistant who issues a prescription in violation of these provisions shall be subject to revocation or suspension."
As indicated above there are two issues implicit in your first question;i.e., (1) whether a physician's assistant may lawfully issue a prescription for legend drugs or controlled substances and (2) whether a licensed registered nurse may lawfully execute the medical orders of a physician's assistant ‑ including those for the administration of such drugs. On its face, WAC 308-52-135 clearly answers the first of those two questions in the affirmative in the case of all legend drugs and some, but not all, of the controlled substances covered by chapter 69.50 RCW. And, as above noted, the interpretation of the physician's assistants act is specifically made a responsibility of the State Board of Medical Examiners which adopted this regulation. The interpretation of a statute by an agency charged with its administration is to be afforded great weight, both by this office and by the courts. See,e.g.,Hendrick's Electric v. Plumley, 18 Wn.App. 440 (1977); andHamma Hamma v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975).
But what is the consequence of the absence of any express reference to physician's assistants in either the legend drug act (chapter 69.41 RCW) or the controlled substances act (chapter 69.50 RCW)? And what, similarly, is the consequence of the absence of any mention of physician's assistants in the above‑cited sections of chapter 18.88 RCW relating to the lawful activities of a licensed registered nurse?
In both cases we think the key is to be found in the statutory relationship between a physician's assistant and his or her supervising physician. Read in its entirety, chapter 18.71A RCW amply demonstrates a legislative intent that a physician's assistant is to be considered as a statutory agent of the supervising physician. For example, RCW 18.71A.020,supra, provides the important agency element of control by the principal by requiring, inter alia, that
[[Orig. Op. Page 8]] ". . . each physician's assistant shall practice medicine only under the supervision and control of a physician licensed in this state, . . ."
As a corollary to this requirement the legislature has further directed, in RCW 18.71A.050,
". . . That any physician shall retain professional and personal responsibility for any act which constitutes the practice of medicine as defined in RCW 18.71.010 when performed by a physician's assistant in his employ."
By thus requiring a supervising physician to accept responsibility for the acts of his assistant, the legislature has essentially provided that, as a matter of law, the acts of the statutorily authorized assistant are to be deemed those of the supervising physician himself.
Also, in this same regard, it is important once again to note that the physician's assistant is not individually licensed. Rather than licensing physician's assistants, chapter 18.71A RCW regulates a physician's use of such assistants. This difference may seem subtle but it is significant in that it demonstrates, once again, the intent of the legislature that the physician's assistant be considered as an extension of the supervising physician himself.
Once this statutory relationship of principal-agent is understood and accepted the rest, it seems to us, falls readily in place. First of course, it explains why physician's assistants are not specifically referred to in the legend drug act (chapter 69.41 RCW) or the controlled substances act (chapter 69.50 RCW). Simply stated, there is no reason for them to be there included since a physician's assistant only issues medical orders and writes prescriptions as a statutorily authorized agent of the supervising physician. The other health care service professions which are specifically identified in those acts, on the other hand, have their own independent statutory authorization (under their respective licensing statutes) to prescribe, administer and/or dispense those medications without supervision.
[[Orig. Op. Page 9]] Furthermore, as also above noted, individual physician's assistants may be restricted by the Board of Medical Examiners from performing activities that are authorized for other physician's assistants. The elasticity of this approach, in turn, additionally displays the appropriateness of not specifically making reference to physician's assistants, as a general class, in either the legend drug or the controlled substances act. But given that premise, it also thus follows, in our judgment, that the existing regulation of the board regarding physician's assistants' prescriptions, WAC 308-52-135,supra, constitutes a valid exercise of the board's rule making power even to the extent of its authorization for physician's assistants to prescribe certain medications under the legend drug act and the controlled substances act.2/
The fact that a physician's assistant functions as the statutory agent of his or her supervising physician likewise supplies the missing link insofar as the remaining aspect of your first question is concerned. As the medical order or prescription issued by a physician's assistant is issued for the supervising physician and, indeed, is the physician's own order as a matter of law (even without being countersigned), a registered nurse may properly execute that order just as she would any other order of the physician ‑ assuming, of course, that the order was issued in compliance with both the rules of the Board of Medical Examiners and the utilization statement for the physician's assistant who issued it. Conversely, if the order was improper on either of these grounds the registered nurse would, of course, be correct in refusing to execute it.3/
For the foregoing reasons, then, we answer your first question in the affirmative and turn, briefly, to your second inquiry which, repeated for ease of reference, is as follows:
[[Orig. Op. Page 10]] "Is it within the powers of the Board of Nursing, as defined in RCW 18.88.080, to adopt a regulation concerning the authority of licensed registered nurses to execute such medical orders of a physician's assistant?"
In posing this question, however, you have not provided us with any particular proposed regulation. Therefore, our response at this time will of necessity be general rather than specific.
The rule making authority of the Washington State Board of Nursing under chapter 18.88 RCW is set forth in two sections of the chapter. First, under RCW 18.88.030(2) the Board can expand the statutory definition of the practice of nursing by rules and regulations to the extent that
". . .
"(2) The performance of such additional acts requiring education and training and which are recognized jointly by the medical and nursing professions as proper to be performed by nurses licensed under this chapter . . ."
The other section of chapter 18.88 RCW to be noted is RCW 18.88.080 which provides that:
"The board may adopt such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this chapter. The board shall approve curricula and shall establish criteria for minimum standards for schools preparing persons for licensure under this chapter. It shall keep a record of all its proceedings and make such reports to the governor as may be required. The board shall define by regulation what constitutes specialized and advanced levels of nursing practice as recognized by the medical and nursing professions. The board may adopt regulations in response to questions put to it by professional health associations, nursing practitioners and consumers in this state concerning the authority of various categories of nursing practitioners to perform particular acts.
". . ."
[[Orig. Op. Page 11]] The foregoing statutes obviously grant the Board of Nursing rather broad powers to adopt rules and regulations affecting nursing practitioners. At the same time, however, it is important to understand that the board cannot, by such rules, effectively restrict the activities of physician's assistants as provided for by chapter 18.71A RCW and the implementing rules and regulations of the Board of Medical Examiners. An administrative agency cannot by regulation create a criteria which is inconsistent with that which is authorized by statute. See,Fecht v. Dep't Social Health Servs, 86 Wn.2d 109, 542 P.2d 780 (1975).
We trust that the foregoing will be of assistance to you.
Very truly yours,
EDWARD B. MACKIE
Deputy Attorney General
EDWARD H. SOUTHON
Assistant Attorney General
*** FOOTNOTES ***
1/Similarly, §§ 7-12 of the same 1971 act granted the same legislative recognition to osteopathic physician's assistants.
2/This construction is also consistent with the maxim of statutory construction that separate statutes on a single subject should be interpreted so as to give full effect to each statute. Miller v. King County, 59 Wn.2d 601, 369 P.2d 304 (1962).
3/Additionally, it is the right of a registered nurse to question any physician's order about which she has cause to doubt the medical propriety ‑ whether it is issued personally by the physician or through his physician's assistant. However, the fact that an order is issued by an authorized physician's assistant does not make it questionable, per se.