Who is allowed to perform X-rays and other radiologic procedures in a Texas hospital, and which state agency checks their training?

Texas AG Opinion JM-1066: Who Can Perform X-Rays in a Texas Hospital?

Plain-English summary

The Commissioner of Health sent the Attorney General a batch of questions about the Texas law that certifies people who administer radiation for medical purposes, the Radiologic Technologist Certification Act (article 4512m). The law creates a certification program run by the Department of Health, but it also carves out several situations where a person can perform radiologic procedures (X-rays and nuclear medicine procedures) without being certified. Two of those carve-outs drove most of the questions. Under section 2.07(c), an uncertified person can perform procedures at the direction of a licensed practitioner (a doctor, podiatrist, dentist, chiropractor, or osteopath) as long as the person and the practitioner follow rules the relevant licensing board has written. Under section 2.07(d), a person can perform procedures in a hospital that takes part in Medicare or is accredited by the Joint Commission on Accreditation of Hospitals, if the person was trained to the Medicare or Joint Commission standards.

The first question was about registered nurses and dangerous procedures. Section 2.08(c)(4) tells the licensing boards to identify procedures that are more dangerous or hazardous and that only a practitioner or a certified technologist may perform. The AG read that as not exempting nurses from that regulation, but pointed to section 2.08(d), which lets a board take into account whether a procedure will be done by a registered nurse. Putting those together, the opinion said a board can create a middle tier: procedures that a practitioner may direct either a certified technologist or a registered nurse to perform. Nothing forces a board to draw those lines, but it has the authority to.

The second question asked whether the licensing boards have to write rules for people working in the Medicare or Joint Commission hospitals covered by section 2.07(d). The AG said no, and went further: the rules those boards write under section 2.08(b) do not apply inside those hospitals at all. The reasoning was that section 2.07(d), unlike 2.07(c), makes no reference to complying with the board rules; that if the board rules did apply, the 2.07(d) exception would be pointless because it would collapse into the 2.07(c) exception; and that the board rules cover the same safety, training, and supervision ground that Medicare and Joint Commission standards already cover, so applying both could produce conflicting requirements. The opinion treated section 2.07(d) as a legislative decision that Medicare approval and Joint Commission accreditation are adequate quality control for radiologic procedures in those hospitals.

The third question, about registration of nurses by the Board of Nurse Examiners under section 2.08(e), followed from the second. That registration requirement applies only to nurses performing procedures under section 2.07(c), not to nurses in section 2.07(d) hospitals. Because the section 2.08 rules do not reach 2.07(d) hospitals, the AG did not need to reach the rest of that question.

The fourth question asked the AG to check whether the agencies' current rules met the statute. The opinion declined, because the attorney general does not review agency rules in the opinion process.

The final question was the most consequential for hospitals. Section 2.07(d) requires that a worker have received appropriate instruction and training consistent with Medicare or Joint Commission standards, and that the hospital develop a training protocol. Who decides whether those conditions are met? The AG's answer: no state agency. Nothing in the act gives any agency authority to determine whether a particular individual actually received appropriate training, or whether a hospital developed the required protocol. Instead, an uncertified person who performs procedures without appropriate training commits a class B misdemeanor and can be prosecuted, and a hospital that lets untrained people perform procedures risks losing its Joint Commission accreditation or Medicare approval. The opinion read the protocol requirement as calling for detailed written guidelines on training and instruction, but noted the act does not require a hospital to file its protocol with anyone or require any agency to make sure a protocol exists.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The certification law cited here as article 4512m, V.T.C.S., has since been recodified into the Texas Occupations Code and amended, and the referenced federal Medicare hospital-participation rules (42 C.F.R.) and the Consumer-Patient Radiation Health and Safety Act have changed over the years. The organization now known as the Joint Commission has also revised its accreditation standards many times. Anyone with a present-day question about who may perform radiologic procedures in a Texas hospital, or what training and protocol requirements apply, should check the current Occupations Code provisions, current agency rules, and current federal standards rather than relying on the 1989 citations used here.

Who this opinion affected (as of 1989)

Hospitals participating in Medicare or accredited by the Joint Commission: The opinion told them their workers could perform radiologic procedures without a state certificate if trained to Medicare or Joint Commission standards, that the state licensing-board rules did not apply inside them, and that they, not a state agency, were responsible for training and for developing a written protocol, on pain of losing Medicare or Joint Commission status.

Registered nurses performing radiologic procedures: The opinion clarified that a licensing board could allow a middle tier of procedures for nurses, and that the Board of Nurse Examiners registration requirement reached only nurses working under the section 2.07(c) practitioner-direction exception, not those in Medicare or Joint Commission hospitals.

State licensing boards (medicine, chiropractic, dentistry, podiatry, nursing): The opinion mapped the limits of their rulemaking authority under section 2.08, including that their rules did not extend into section 2.07(d) hospitals.

Uncertified radiologic workers: The opinion warned that performing procedures without appropriate training was a class B misdemeanor, enforced through criminal prosecution rather than agency licensing review.

Common questions

Can a hospital worker perform X-rays in Texas without a state certificate?
Yes, in the right hospital. Under section 2.07(d), a person in a hospital that participates in Medicare or is accredited by the Joint Commission can perform radiologic procedures without a state certificate if trained to the Medicare or Joint Commission standards.

Do the state licensing-board rules apply to those hospital workers?
No. The Attorney General concluded that rules promulgated under section 2.08(b) do not apply to persons performing radiologic procedures in the hospitals described in section 2.07(d), because Medicare and Joint Commission standards already cover the same safety and training ground.

Which state agency checks whether a hospital worker was properly trained?
None. The opinion concluded that no state agency has authority to determine whether a particular individual received appropriate training or whether a hospital developed the required protocol. Enforcement runs through criminal penalties and the risk of losing Medicare or Joint Commission status.

Can a registered nurse perform the more dangerous procedures?
It depends on the licensing board's rules. A board must identify more dangerous or hazardous procedures reserved to practitioners or certified technologists, but under section 2.08(d) it may also identify a middle tier that a certified technologist or a registered nurse may perform. Nothing requires a board to create that tier.

What happens to someone who performs radiologic procedures without proper training?
An uncertified person without appropriate training who performs radiologic procedures commits a class B misdemeanor under the act and can be criminally prosecuted.

Background and statutory framework

The Commissioner of Health asked a number of questions about the Radiologic Technologist Certification Act, article 4512m, V.T.C.S. The act creates a certification process for medical radiologic technologists, administered by the Department of Health. V.T.C.S. art. 4512m, § 2.05; see 42 U.S.C. §§ 10001-10008 (Consumer-Patient Radiation Health and Safety Act). A "medical radiologic technologist" is a person certified under the act, other than a practitioner, who, under the direction of a practitioner, intentionally administers radiation to other persons for medical purposes. Id. § 2.03(7). A "practitioner" is a doctor of medicine, podiatry, dentistry, osteopathy, or chiropractic who is licensed under the laws of this state and who prescribes radiologic procedures for other persons. Id. § 2.03(6). A "radiologic procedure" 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. Id. § 2.03(5).

Section 2.07 provides that, except as otherwise provided, a person must hold a certificate to perform a radiologic procedure. It then sets out exceptions: a practitioner performing within the scope of the license (§ 2.07(b)); an uncertified person performing under the instruction or direction of a practitioner if the person and the practitioner comply with rules adopted under section 2.08 (§ 2.07(c)); and a person in a hospital that participates in Medicare or is accredited by the Joint Commission on Accreditation of Hospitals who has received appropriate instruction and training in the use and operation of diagnostic radiologic equipment consistent with either the federal Medicare standards for certification of hospitals or the accreditation standards of the Joint Commission (§ 2.07(d)). A hospital that instructs and trains a person in the performance of radiologic procedures must develop a protocol for the instruction and training.

Section 2.08 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. Each agency other than the Board of Nurse Examiners must adopt rules under the Administrative Procedure and Texas Register Act (article 6252-13a, V.T.C.S.) to regulate the manner in which a licensee may order, instruct, or direct another person to perform radiologic procedures (§ 2.08(b)). Rules adopted under the section must, among other things, require a non-nurse person not certified under the act to register with the agency that licenses the practitioner; establish fees; establish grounds for suspension, revocation, or nonrenewal of registration; identify radiologic procedures that are more dangerous or hazardous and may only be performed by a practitioner or by a certified medical radiologic technologist; and establish safety standards and training and supervision standards (§ 2.08(c)). In adopting rules under subsection (c), an agency may take into account whether the procedure will be performed by a registered nurse (§ 2.08(d)). The Board of Nurse Examiners may adopt rules governing registered nurses performing radiologic procedures under section 2.07 and must require nurses performing under section 2.07(c) to register with the board and identify the ordering practitioner (§ 2.08(e)).

Applying that framework, the opinion answered the Commissioner's questions in turn. On the first, it construed section 2.08(c)(4) together with section 2.08(d): a licensing board must identify more dangerous or hazardous procedures reserved to a practitioner or a certified technologist, and nothing in subsection (c)(4) exempts registered nurses from that regulation (compare § 2.08(c)(1), which requires a registration requirement but exempts registered nurses from it). But subsection (d), by letting a board take into account whether a procedure will be performed by a registered nurse, gives a board authority to identify a middle tier of procedures that a practitioner may direct a certified technologist or a registered nurse to perform. The opinion assumed the legislature intended by section 2.08(d) to recognize that registered nurses generally have greater competence than other persons to whom practitioners might delegate radiologic procedures. Nothing in the act requires a board to identify any such procedures.

On the second question, the opinion concluded that rules promulgated under section 2.08(b) were intended to be inapplicable in the hospitals described in section 2.07(d). Section 2.07(c) expressly conditions its exception on compliance with section 2.08 rules, while section 2.07(d) makes no reference to those rules; if the rules applied in 2.07(d) settings, the 2.07(d) exception would add nothing to the 2.07(c) exception; and the section 2.08 rules cover the same safety, training, and supervision ground as the Joint Commission and Medicare standards a hospital must already meet (see JCAH Accreditation Manual for Hospitals (1988); 42 C.F.R. §§ 482.26, 482.53), so applying both could conceivably be inconsistent. The opinion read section 2.07(d) as a legislative decision that the Joint Commission accreditation process and the Medicare approval process are adequate quality control of radiologic procedures in hospitals. It added, in a footnote, that persons performing radiologic procedures in hospitals would typically be staff receiving instructions from a variety of practitioners with staff privileges, making it cumbersome to subject them to different standards depending on which practitioner instructed them. See generally Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex. 1977) (disapproving the "captain of the ship" doctrine for a surgeon in a hospital operating room).

On the third question, section 2.08(e) makes clear that the Board of Nurse Examiners registration requirement applies only to nurses performing radiologic procedures under section 2.07(c), not to nurses performing under section 2.07(d). Because the rules promulgated under subsection 2.08(c)(4) are not applicable in the hospitals described in section 2.07(d), the opinion did not need to address the remainder of that question. On the fourth question, the opinion declined to review the agencies' current rules, because the attorney general does not review agency rules in the opinion process.

On the final question, section 2.07(d) requires a person to have received appropriate instruction and training consistent with Medicare or Joint Commission standards. Nothing in the act gives any administrative agency authority to determine whether a particular individual performing radiologic procedures in a Medicare- or Joint Commission-approved hospital 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, § 2.13. A hospital would also risk losing its Joint Commission accreditation or Medicare approval by allowing persons to perform radiologic procedures without appropriate training. As for the protocol, a medical dictionary defines "protocol" 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 also Taber's Cyclopedic Medical Dictionary (15th ed. 1988)), so the opinion read section 2.07(d) as requiring a hospital to have detailed written guidelines governing training and instruction 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.

Citations

Statutory and regulatory authority:

• V.T.C.S. art. 4512m (Radiologic Technologist Certification Act), §§ 2.03 (definitions), 2.05 (certification), 2.07 (certificate requirement and exceptions, subsections (a)-(d)), 2.08 (licensing-board rules, subsections (a)-(e)), 2.13 (class B misdemeanor)
• V.T.C.S. art. 6252-13a (Administrative Procedure and Texas Register Act)
• 42 U.S.C. §§ 10001-10008 (Consumer-Patient Radiation Health and Safety Act)
• 42 C.F.R. §§ 482.26, 482.53 (Medicare conditions of participation: radiologic and nuclear medicine services)

Cases cited:

• Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex. 1977)

Attorney General materials referenced:

• Letter Advisory LO-88-54

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1066
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1066.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

July 3, 1989

Robert Bernstein, M.D., F.A.C.P.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. JM-1066

Re: Construction of Radiologic Technologist Certification Act, article 4512m, V.T.C.S. (RQ-1659)

Dear Dr. Bernstein:

You ask a number of questions about the 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 Department of Health. V.T.C.S. art. 4512m, § 2.05. See 42 U.S.C. §§ 10001-10008 (Consumer-Patient Radiation Health and Safety Act). A "medical radiologic technologist" is "a person certified under [the] Act, other than a practitioner, who, under the direction of a practitioner, intentionally administers radiation to other persons for medical purposes." Id. § 2.03(7). A "practitioner" is "a doctor of medicine, podiatry, dentistry, osteopathy, or chiropractic who is licensed under the laws of this state and who prescribes radiologic procedures for other persons." Id. § 2.03(6). A "radiologic procedure" 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." Id. § 2.03(5).

Your questions focus on sections 2.07 and 2.08 of the act. Section 2.07 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 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 on Accreditation of Hospitals and who has received appropriate instruction and training in the use and operation of diagnostic radiologic equipment consistent with either the federal Medicare standards for certification 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 performance 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 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 certified medical radiologic technologist under this Act;
(5) establish safety standards and procedures for the operation of equipment used to perform radiologic procedures; and
(6) establish training and supervision standards for 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 (c) and (d) of Section 2.07 of this Act and shall require registered nurses performing radiologic procedures under Subsection (c) 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.[1]

[1] In LO-88-54 we determined that the reference to Subsection (b) was a typographical error and should be read as a reference to Subsection (c).

Your first question is:

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 a medical radiologic technologist certified under this Act." Nothing in subsection (c)(4) would exempt registered nurses from that type of regulation. Cf. § 2.08(c)(1) (requiring licensing boards to adopt a registration requirement, but providing that registered nurses are to be exempt from such registration requirements). 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 certified medical radiologic technologists or registered nurses to perform.[2] Of course, nothing in the act would require a licensing board to identify any such procedures.

[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.

Your second question is:

Must the licensing agencies adopt rules under section 2.08(b)-(d) of the Act to regulate 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." 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 same administrative 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 in compliance with rules promulgated under section 2.08. 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.

Also, the substantive rules to be promulgated under section 2.08 have to do with safety, training, and supervision. 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. See JCAH Accreditation Manual for Hospitals (1988); 42 C.F.R. § 482.26 (Condition of participation for hospitals participating in Medicare and Medicaid: Radiologic services); § 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).

[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 generally Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex. 1977) (disapproves "captain of ship doctrine" for surgeon in hospital operating room).

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?

Section 2.08(e) makes clear that the registration requirement 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.

[4] As we noted in footnote 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).

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 "protocol" has been developed?

Section 2.07(d) provides:

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 on Accreditation of Hospitals and who has received appropriate instruction and training in the use and operation of diagnostic radiologic equipment consistent with either the federal Medicare standards for certification 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 performance of radiologic procedures shall develop a protocol for the instruction and training.

To perform a radiologic procedure under section 2.07(d), a person must have received "appropriate instruction and training" consistent with Medicare standards or JCAH 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 JCAH 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, § 2.13. Also, a hospital would risk losing its JCAH accreditation or its Medicare approval by allowing persons to perform radiologic procedures without appropriate training.

You also ask who is responsible for determining whether a hospital has developed a "protocol" for the instruction and training of persons who perform radiologic procedures. A medical dictionary defines "protocol" 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 also Taber's Cyclopedic Medical Dictionary (15th ed. 1988). Therefore, we read section 2.07(d) as requiring a hospital to have detailed written guidelines governing training and instruction 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 "more dangerous or hazardous" and that only a certified medical radiologic technologist may perform. A licensing board also has authority, however, to identify radiologic procedures that only a certified medical radiologic technologist or 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 apply only to nurses performing radiologic procedures pursuant to section 2.07(c), not to nurses performing radiologic procedures pursuant to section 2.07(d). No state agency has authority to determine whether a hospital described in section 2.07(d) is in compliance with the requirements of that section.

JIM 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 Sarah Woelk
Assistant Attorney General