Can a nursing student give medication to nursing home residents during clinical training in Texas?

Texas AG Opinion JM-1096: Do Nursing Students Need a Permit to Give Medication in Nursing Homes?

Plain-English summary

Nursing homes and similar institutions have long served as clinical training sites, where nursing students and people training to become medication aides practice their skills, including giving residents their medications under supervision. The Board of Nurse Examiners asked the Attorney General whether a state law that governs who may administer medication in those institutions applies to trainees, or whether training was an unwritten exception.

The law in question is section 242.151 of the Health and Safety Code (part of subchapter F of chapter 242, which covers convalescent and nursing homes and related institutions). It says plainly that a person may not administer medication to a resident unless the person either holds a license under state law authorizing it or holds a permit issued by the Department of Health under section 242.154 and acts under the authority of a licensed person. The Board argued that the legislature never meant to sweep in nursing students and medication aide trainees who administer medications under supervision as part of their coursework.

The Attorney General declined to create that exception. The opinion held it would not go beyond the plain language of section 242.151, and it found no exception in chapter 242 or elsewhere in Texas law for a nursing student, a medication aide trainee, or anyone else. So whoever administers medication in a chapter 242 institution needs the license or the permit. The opinion also rejected the idea that a physician's general power to delegate medical acts to "any qualified and properly trained person" (a provision found in article 4495b, section 3.06(d), V.T.C.S.) overrode the specific licensing requirement for these institutions.

That said, the opinion pointed the Board toward the flexibility built into subchapter F. The Board of Health sets the requirements for obtaining a permit, including the training curriculum and standards for approving training programs. At the time, the Board's rules required an approved training program of 100 classroom hours and 40 hours of clinical experience, but already exempted unlicensed or unregistered nursing school graduates from the training component. The opinion suggested the Board likewise had authority to adopt rules crediting completion of parts of a nursing school curriculum toward the training requirement. In other words, the answer to the Board's underlying concern was rulemaking, not a judicially or administratively invented exception to the statute.

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 statutes and rules here have been reorganized since 1989: the physician-practice statute (former article 4495b, V.T.C.S.) and the nursing statutes were recodified into the Occupations Code, the Board of Nurse Examiners became the Texas Board of Nursing, and health-agency functions have been reassigned among the Health and Human Services agencies. The medication-aide permit rules in chapter 242 and title 25 (now often title 26) of the Texas Administrative Code have also been amended. Anyone dealing with a present-day medication-administration or medication-aide question should work from current law and current agency rules rather than the 1989 provisions described here.

Who this opinion affected (as of 1989)

Nursing homes and convalescent institutions: The opinion confirmed that only licensed persons or Department of Health permit holders could administer medication to residents, with no built-in exception for trainees practicing on site.

Nursing students and medication aide trainees: The opinion meant that, as the statute stood, they could not administer medication to residents of chapter 242 institutions during clinical training unless they held the required license or permit, absent a Board rule accommodating them.

The Board of Health and Board of Nurse Examiners: The opinion directed attention to the Board of Health's rulemaking authority over permit and training requirements, noting existing rules already exempted unlicensed nursing school graduates from the training component and suggesting the Board could adopt rules crediting nursing school coursework.

Common questions

Can a nursing student administer medication to a nursing home resident during clinical training?
Not under the statute as it stood. The Attorney General concluded section 242.151 of the Health and Safety Code required a license or a Department of Health permit, and found no training exception for nursing students or medication aide trainees.

Does a physician's authority to delegate medical acts get around this?
No. The opinion held that the provision allowing a physician to delegate medical acts to "any qualified and properly trained person" (article 4495b, section 3.06(d), V.T.C.S.) did not create an exception to the specific license-or-permit requirement for chapter 242 institutions.

Was there any way for students to be accommodated?
Yes, through rulemaking. The opinion noted the Board of Health sets permit and training requirements under subchapter F, that its rules already exempted unlicensed nursing school graduates from the training component, and that the Board could adopt rules crediting portions of a nursing school curriculum toward the training requirement.

What did the permit training program require at the time?
The Board's rules required completion of an approved training program of 100 classroom hours and 40 hours of clinical experience to obtain a permit. 25 T.A.C. § 145.256 (1983).

Background and statutory framework

The request concerned subchapter F of chapter 242 of the Health and Safety Code, into which section 7B of article 4442c, V.T.C.S., was recodified without substantive change effective September 1, 1989. Acts 1989, 71st Leg., ch. 678, § 1, at 2230. Section 242.151 provides that 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 (2) holds a permit issued under section 242.154 and acts under the authority of a person who holds such a license.

The Board of Nurse Examiners argued that subchapter F was enacted to provide ongoing oversight of unlicensed persons administering medications in these facilities, in response to problems and abuses, and that the legislature never intended to bar nursing students or medication aide trainees from administering medications under supervision as part of their training. See Bill Analysis, H.B. 1753, 68th Leg. (1983). The Attorney General declined to go beyond the plain language of section 242.151 to create exceptions. The opinion found that the provision permitting a physician to delegate medical acts, including administration of drugs, to "any qualified and properly trained person" (article 4495b, section 3.06(d), V.T.C.S.) did not supply an exception to the requirement specifically applicable to chapter 242 institutions, and that no exception existed in chapter 242 or elsewhere for a nursing student, a medication aide trainee, or anyone else.

The opinion traced the history of the requirement. Before codification, article 4442c, section 7(a)(8), added in 1977 (Acts 1977, 65th Leg., 1st C.S., ch. 2, § 1, at 49), had provided that "all personnel administering medications must have completed a state-approved training program in medication administration." With the more detailed permit requirements added by section 7B of article 4442c in 1983 (House Bill No. 1753, Acts 1983, 68th Leg., ch. 940, at 5170), the 1977 language became redundant and was merged into subchapter F upon codification.

Finally, the opinion emphasized the Board of Health's flexibility under subchapter F. Section 242.152 directs the board to adopt rules establishing requirements for issuance and renewal of permits, curricula to train persons to administer medications, and standards for approval of training programs; section 242.154(b) requires the department to prepare and conduct examinations for permit applicants; and section 242.155 requires the board to set an application fee. At the time, board rules required completion of an approved training program of 100 classroom hours and 40 hours of clinical experience for a permit (25 T.A.C. § 145.256 (1983)), while exempting unlicensed or unregistered nursing school graduates from the training component (id. § 145.252). The opinion observed the board would likewise have authority to adopt rules under which completion of certain portions of a nursing school curriculum would fulfill the training requirement.

Citations

Statutory and regulatory authorities:

• Health and Safety Code § 242.151 (permit to administer medication; license-or-permit requirement)
• Health and Safety Code §§ 242.151 through 242.158 (subchapter F, convalescent and nursing homes)
• Health and Safety Code § 242.152 (board rules on permits, curricula, training-program standards)
• Health and Safety Code § 242.154 (department examinations for permit applicants)
• Health and Safety Code § 242.155 (application fee)
• Health and Safety Code § 242.002(6) (definition of "institution"); § 242.003 (exemptions)
• Health and Safety Code § 11.013 (board adopts policies and rules and governs the department)
• article 4442c, section 7B, V.T.C.S. (permit requirements; recodified into subchapter F)
• article 4442c, section 7(a)(8), V.T.C.S. (1977 training-program requirement, later merged)
• article 4495b, section 3.06(d), V.T.C.S. (physician delegation of medical acts)
• Acts 1983, 68th Leg., ch. 940, at 5170 (House Bill No. 1753)
• Acts 1989, 71st Leg., ch. 678, § 1 (codification into the Health and Safety Code)
• Acts 1977, 65th Leg., 1st C.S., ch. 2, § 1, at 49 (1977 addition of section 7(a)(8))
• 25 T.A.C. § 145.256 (training program: 100 classroom hours, 40 clinical hours); § 145.252 (exemption for unlicensed nursing school graduates)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1096
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1096.pdf

Original opinion text

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

September 19, 1989

Louise Waddill, R.N., Ph.D.
Executive Secretary
Board of Nurse Examiners
9101 Burnet Road
Suite 104
Austin, Texas 78758

Opinion No. JM-1096

Re: Whether a nursing student may administer medications under certain conditions and 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

(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 subchapter F from administering medications to such institutions' 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 4495b, section 3.06(d), that a physician may delegate medical acts, administration of drugs, etc., to "any qualified and 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]

We do note that the provisions of subchapter F allow the Board of Health and Department of Health some flexibility 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 alia, completion of an approved training program consisting of 100 classroom hours and 40 hours of clinical experience in order to obtain a permit. 25 T.A.C. § 145.256 (1983). Notably, the rules currently exempt unlicensed or unregistered nursing school graduates from the training component of the permit requirements. Id. § 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 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 subject to chapter 242, Health and Safety Code.

Very truly yours,

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 William Walker
Assistant Attorney General

Footnotes

[1] You refer in your request to section 7B of article 4442c, V.T.C.S. Effective September 1, 1989, article 4442c is repealed and its provisions recodified without substantive change as part of the Health and Safety Code. Acts 1989, 71st Leg., ch. 678, § 1, at 2230; see id. §§ 13, at 3165 (repealer), 1, at 2236 (no substantive change intended), 1, at 2476 (codification of provisions of section 7B of article 4442c). We will refer in this opinion to the provisions in question as they are found in chapter 242, subchapter F (sections 242.151 through 242.158) of the Health and Safety Code. Also, two different acts of the 68th Legislature added a section 7B to article 4442c. 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.

[2] The term "institution" as used in chapter 242 is defined in some detail in section 242.002(6); see section 242.003 (exemptions).

[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 personnel 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 4442c 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 4442c (now subchapter F of chapter 242 of the code), indicates that current law in 1983 already empowered "the Texas Department of Health to allow for . . . the administration of certain medications [by] 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).

[4] See [Health and Safety Code] § 242.002(1), (2) (providing that the terms "board" 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 department." Id. at 2239.