Request By:
Mr. Bruce Simpson
Legislative Analyst
Interim Joint Committee on Health and Welfare
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Martin Glazer, Assistant Attorney General
By letter dated July 9, 1979, you have advised that Representative Aubrey Williams has directed you to request the legal opinion of this office pertaining to the following:
"Can an advanced registered nurse practitioner, as defined by KRS Chapter 314, lawfully provide such health care services in a primary care center, as defined by Kentucky Administrative Regulations (902 KAR 20:059), without a licensed physician being present or on the premises, but who would be on call during the period of time (up to eight hours) that the advanced registered nurse practitioner is providing services? Also, the advanced registered nurse practitioner would be following standing orders, written directives and other written guidelines as prescribed and signed by a duly licensed staff physician of the primary care center. "
By an addendum request of July 13, you also ask whether a registered nurse can perform such services who is not an advanced registered nurse practitioner.
The regulation in question (902 KAR 20:059) in Section 6 provides in part:
"The center shall have at least the following staff of two (2) full-time physicians or one or more full-time physicians and one or more full-time registered nurses as defined in Section 6(2):"
In Section 2 a nurse is defined as follows:
"The center shall have at least one (1) registered nurse who works under the supervision of a licensed physician and provides services according to established protocol. (Section 4(1)(b).) This registered nurse shall have completed at least formal nurse practitioner training and/or have completed an approved clinical specialist nurse training (the licensed nurse or the clinical specialist must have completed an approved nurse practitioner program by the first license renewal period)."
Further, Section 7 of that regulation provides in subsection (2):
"The center shall make emergency services available twenty-four (24) hours per day, seven (7) days per week, either directly or through an alternate service."
And, subsection (3) provides:
"A physician shall be on call twenty-four (24) hours per day and available to supportive personnel."
Subsection (4)(c) requires that:
"The alternate service has a physician on call twenty-four (24) hours per day;"
The nurse practice act as amended in 1978 provides in KRS 314.011(7):
"'Advanced registered nursing practice' shall mean the performance of additional acts by registered nurses who have gained added knowledge and skills through an organized post-basic program of study and clinical experience approved by the organization or agency which has the authority to certify the advanced registered nurse practitioner. In the performance of those procedures which are normally construed as the practice of medicine, the nurse will conform to the standards of the medical practice act and established medical protocol. "
Also, KRS 314.021 dealing with the policy of the act provides in subsection (2):
"All individuals licensed under the provisions of this chapter shall be responsible and accountable for making decisions that are based upon the individuals' educational preparation and experience in nursing. "
Based upon these various aforequoted statutes and regulation, we believe that it is possible that an advanced registered nurse practitioner may be available without a licensed physician being present on the premises during certain hours provided there are specific and detailed previously drawn-up protocols which would provide for emergency situations and which would limit the activity of the advanced registered nurse practitioner to performing those duties which she was properly trained to perform in the absence of the physician. The protocol would also need to provide for a detailed requirement as to when the physician must be called upon the premises, and the physician must be within ready call and available for consultation and appearance when he is not on the premises.
There would also need to be a protocol concerning emergency drugs that would be previously set out in an emergency drug box for the advanced registered nurse practitioner in the event of their need when the physician is not on the premises and a pharmacist is not on the premises or available for consultation.
In short, the advanced registered nurse practitioner may be available on the premises without the physical presence of the physician during certain hours, but during those hours the advanced registered nurse practitioner's activities are much more limited in scope than would be available to her were the physician on the premises. She could not administer drugs in the absence of a pharmacist except those which are administered from previously set-aside emergency supplies. The protocols would have to limit her activities to those to which she was properly trained to perform.
Since the ordinary registered nurse is not properly certified as trained to perform certain advanced registered nurse practices, in the absence of a physician the clinic could not be operated with just a registered nurse who is not an advanced practitioner where the physician is not available on the premises. And, we should also warn that should the protocol set out by the physician require the nurse (advanced registered nurse practitioner) to perform activities which she is not properly trained to perform, then she would be responsible for the results of those activities in the absence of a physician.