Request By:
Martha Pride, DNSc, RN
President, Kentucky Nurses Association
1400 South First Street
P. O. Box 2616
Louisville, Kentucky 40201
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; NATHAN GOLDMAN, ASSISTANT ATTORNEY GENERAL
In your letter to the Attorney General you ask whether 201 KAR 20:057, a regulation promulgated by the Kentucky Board of Nursing, is consistent with statutory authority.
Regulation 201 KAR 20:057 relates to the scope and standards of practice of advanced registered nurse practitioners ("ARNP"). As you point out, Section 2 of the regulation states, in part: "The established protocol shall include those areas of practice related to diagnostic tests, and prescription of medications and treatments. In delineating the areas of practice in the protocol, the advanced registered nurse practitioner shall conform to the standards of practice of the appropriate national nursing organization incorporated by reference in Section 1 of this regulation. " Section 1 incorporates by reference the scope and standards of practice statements by several national organizations.
The Kentucky Board of Nursing ("Board") has been given the authority to promulgate regulations in KRS 314.131(1). KRS 314.193(2) authorizes the Board to promulgate regulations relating to the scope and standards of advanced nursing practice, after consultation with, inter alia , the Nurse Practice Council.
ARNP is defined in KRS 314.011(6) as "one who is registered and designated to engage in advanced registered nursing practice including but not limited to the nurse anesthetist, nurse midwife and nurse practitioner pursuant to KRS 314.042." KRS 314.042(1) requires, as one of the criteria for designation as an ARNP, that the individual be "certified by a nationally established organization or agency recognized by the board to certify registered nurses for advanced nursing practice."
KRS 314.011(7) defines advanced registered nursing practice as "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 and who are certified by the American Nurses' Association or other nationally established organizations or agencies recognized by the board to certify registered nurses for advanced nursing practice. The performance of these additional acts shall be consistent with the certifying organization or agencies' scopes and standards of practice recognized by the board by regulation. "
It is a fundamental principle of law that administrative regulations which have been duly adopted and properly filed have the full effect of law, provided that the regulation is a direct implementation of the functions and duties assigned to the agency by statute.
Kentucky Association of Chiropractors, Inc. v. Jefferson County Medical Society, Ky., 549 S.W.2d 817 (1977). The herein cited regulation, 201 KAR 20:057, is clearly such a direct implementation of the above-cited statutes. The regulation was duly adopted and properly filed. Consequently, it has the full effect of law.
The only other exception which could make the regulation unenforceable would be a determination by a court of competent jurisdiction that the above-cited statutes were an unlawful delegation of the legislative function of the General Assembly. Diemer v. Commonwealth , 37 K.L.S. 1, p. 18 (1/24/90). As the Court in Diemer stated: "The legislative scheme must be essentially complete on its face, leaving to regulatory authority administrative rather than policy decisions." In
Holsclaw v. Stephens, Ky., 507 S.W.2d 462, 471 (1974), the Court stated: "Generally speaking a delegation of discretion is not unlawful if sufficient standards controlling the exercise of that discretion are found in the act . . . ."
The statutes dealing with advanced nursing practice are essentially complete on their face, giving the Board administrative responsibilities. The Board has some discretion in the choice of nationally established organizations, which may set the scope and standards of practice for ARNPs. Such delegation has been held to be proper and constitutional.
Simm v. Cameron, 337 F.Supp. 1380 (D.C.Call., 1970).
Lucas v. Maine Commission on Pharmacy, Me., 472 A.2d 904 (1984); 16 C.J.S., Constitutional Law, § 141.
Consequently, it is our opinion that 201 KAR 20:057 is a properly promulgated regulation which has the full force of law. Neither it nor the statutes upon which it is based constitute an unlawful delegation of legislative authority.