AUTHORITY TO PERFORM CATHETERIZATION WITHOUT MEDICAL LICENSE

SCHOOL DISTRICTS—EMPLOYEES—AUTHORITY TO PERFORM CATHETERIZATION WITHOUT MEDICAL LICENSE

We would advise against school district employees performing catheterization without a medical license.

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May 4, 1987

Honorable Frank J. Warnke
State Senator, 31st District
419 John A. Cherberg Building     
Olympia, WA 98504                                                                                                                                              Cite as: AGO 1987 No. 14

Dear Sir:

By letter previously acknowledged, you have requested our opinion on the following question:
 
Must a school district employee performing catheterization be medically licensed?

We answer your question in the manner set forth below.

ANALYSIS

             The question of catheterization in the school setting arises in the context of providing services necessary to allow handicapped students to remain within the school system. RCW 28A.13.010 provides in part:

The superintendent of public instruction shall require each school district in the state to insure an appropriate educational opportunity for all handicapped children between the ages of three and twenty-one…

             In support of this requirement the Superintendent of Public Instruction has the duty and authority to “[a]ssist school [Original Page 2] districts in the formation of total school programs to meet the needs of handicapped children.” RCW 28A.13.070.

             WAC 392-171-325(1), promulgated to implement chapter 28A.13 RCW provides in part:

Each school district shall provide every handicapped student between the age of three and twenty-one a free and appropriate educational program consisting of special education and related services…

Services necessary to support the handicapped student in the school district are included in the term “related services”. See WAC 392-171-320.

             Under the Education of the Handicapped Act, 20 U.S.C sections 1400-1454, the federal counterpart to chapter 28A.13 RCW, “related services” has been interpreted to include the clean intermittent catheterization required to assist a handicapped student to benefit from special education. Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 82 L. Ed. 2d 664, 104 S. Ct. 3371 (1984). In Tatro, the Court held that a school district had to provide catheterization for a handicapped student because such service was supportive of the special education and yet was not a medical service necessary only for diagnostic or evaluation purposes. 468 U.S. at 891. The Court, however, did not address the issue of who must perform catheterization and that issue is posed by your question. Unfortunately, our search does not reveal any case that directly deals with this issue.

             In its analysis of the issue of whether the catheterization was a “medical service”, and thus exempt from the Act, the Tatro Court noted:

[T]he regulations state school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician…. It bears mentioning that here not even the services of a nurse are required; as is conceded, a layperson with minimal training is qualified to provide [catheterization]…

Irving Indep. Sch. Dist. v. Tatro, 468 U.S. at 894 (citations omitted). Although upon first reading this seems to clearly address the present issue, the actual holding of the case is only that the services of a physician are not necessary for catheterization. The statement in dicta regarding [Original Page 3] catheterization by a trained layperson is linked to the Court’s earlier statement that catheterization is a relatively simple procedure that parents, siblings, babysitters, and the handicapped students themselves can perform. Id. At 885. See also Detsel v. Board of Educ., 637 F. Supp. 1022 (N.D.N.Y. 1986), (explaining Tatro while holding that constant respirator assistance need not be supplied by a school district). The Supreme Court’s statement’s in Tatro have to be understood in light of the record and the lower court opinions in the case before the Court. See 703 F. 2d 823, 827-29; 516 F. Supp. at 975-76.

             The Washington statutes relevant to nursing services also do not directly address the issue at hand. RCW 18.88.285 sets out the acts which must be performed by a registered nurse. It provides:

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 [sic], whether or not the severing or penetrating of tissues is involved and whether or not a degree of independent judgment and skill is required.

             (2) To delegate to other persons engaged in nursing, the functions outlined in the preceding paragraph.

             (3) To perform specialized and advanced levels of nursing as defined by the board.

             (4) To instruct students of nursing in technical subjects pertaining to nursing.

             [Original Page 4] (5) To hold herself or himself out to the public or designate herself or himself as a registered nurse or nurse.

It seems that catheterization is included within the acts defined in RCW 18.88.285(1). Exceptions to the acts that must be performed by a registered nurse are found in RCW 18.88.030, RCW 18.78.182, RCW 28A.31.150, and RCW 18.88.280.

             The first exception appears in RCW 18.88.030. RCW 18.88.030 defines “the practice of nursing” generally as the performance of acts requiring substantial specialized knowledge, judgment, and skill based upon the principles of the biological, physiological, behavioral, and sociological sciences. The section provides that

[t]his chapter shall not be construed as prohibiting the nursing care of the sick, without compensations, by any unlicensed person who does not hold herself or himself out to be a registered nurse…

Because the school district employees would be compensated for their services to the handicapped student, this exception would not apply.

             The second exception to the services that must be performed by a registered nurse is found in RCW 18.78.182. It provides that a licensed practical nurse may perform, for compensation, nursing care at or under the direction or supervision of a physician or registered nurse. The statute, however, only allows a licensed practical nurse, rather than a registered nurse, to perform the catheterization.

             The third exception appears in RCW 28A.31.150, which provides that public school districts may provide “for the administration of oral medication of any nature to students who are in custody of the school district… at the time of administration….” This exception to RCW 18.88.285 is relevant to the catheterization issue only in that it provides an example of the Legislature acting to modify the requirement of the practice of nursing in the school setting. The Legislature’s failure to explicitly except catheterization of students from the requirements of the medical licensing statutes evidences lack of intent for such procedures to be excepted.

             The fourth exception appears in RCW 18.88.280(4). RCW 18.88.280 sets forth acts that are specifically exempted from [Original Page 5] the list of services that must be provided by a registered nurse. RCW 18.88.280 (4) provides that chapter 18.88 RCW shall not

be constructed as prohibiting auxiliary services provided by persons carrying out duties necessary for the support of nursing service including those duties which involve minor nursing services for persons performed in hospitals, nursing homes or elsewhere under the direction of licensed physicians or the supervision of licensed, registered nurses [.]

(Emphasis added.) “Auxiliary services” are “all those nursing services provided to patients by persons other than the registered nurse, the licensed practical nurse and the nursing student.” WAC 308-120-100(13) (b). The question raised by this exception, then, is whether catheterization is a minor nursing service which need not be performed by a nurse, a licensed practical nurse, or nursing student.

             The term “minor nursing services” is defined as follows:

The techniques and procedures used by the nursing profession are extremely difficult to categorize as major or minor nursing services. The important factor with which this law is concerned is the determination of which nursing person may perform said technique or procedure in relation to the condition of a given patient, and this kind of determination rests with the registered nurse.

WAC 308-120-100(13) (a). This definition suggests that a registered nurse is the proper person to determine whether catheterization is a minor nursing service and, thus, a procedure to be performed by an unlicensed individual. Unfortunately, this definition does not give guidance sufficient to conclude whether catheterization in the school setting will be uniformly determined to be a minor nursing service.¹ Indeed, the definition suggests that no uniform answer can be given, because it is dependent in part on the condition of the patient.

             [Original Page 6] The Legislature has given some suggestion that the minor nursing services referred to in RCW 18.88.280 (4) were intended to be performed in traditional medical settings. RCW 18.88.280 (4) was amended in 1973 by the addition of “nursing homes” to the list of places where minor nursing services were to be performed. Laws of 1973, ch. 133, section 27, p. 392. Those services can be performed outside the hospital and nursing home setting, but a reference to a second medical setting specifically amended into the statute indicates that a medical setting, rather than a school setting, was the intended location for a minor nursing services. We should note that cases based on malpractice for injuries allegedly caused by the negligent insertion of a catheter are replete with testimony of the injury that can be caused by any insertion of a catheter. Emmons v. Petry, 498 S.W.2d 38 (Tex. 1973). See also Barracliff v. Maritime Overseas Corp., 55 Wn. 2d 695, 702, 349 P. 2d 1080 (1960), (medical testimony that use of a catheter by medically unskilled personnel could do more harm than good). 
 
             In summary, the medical licensing statutes do not provide a clear answer to the issue of catheterization by a non-medically licensed school district employee. The statutes indicate that registered nurses or licensed practical nurses must perform nursing services unless an exception is applicable. The most probable exception is that catheterization is a minor nursing service and thus can be performed by a non-medically licensed individual. However, neither statute nor regulation gives much guidance as to what constitutes a minor nursing service, and so a general determination cannot be made with any certainty. 

             The risk facing the employee and the school district in allowing an unlicensed employee to perform the catheterization is set out in Barber v. Reinking, 68 Wn. 2d 139, 411 P. 2d 861 (1966)². Because an unlicensed individual performed a [Original Page 7] service that should have been performed by a licensed nurse, an inference was raised that she did not possess the required knowledge and skill to provide the service in question. Thus, the fact that the individual was unlicensed was evidence of negligence³.  In light of such risk, it is highly questionable whether school district employees who are not medically licensed should be permitted to perform catheterization on students. We would advise against it⁴.

We trust that the foregoing will be of assistance to you.

Very truly yours,
     
KENNETH O. EIKENBERRY
Attorney General

TERESE NEU RICHMOND
Assistant Attorney General
(206) 459-6156

TNR:pk

***FOOTNOTES***

¹ We believe a narrow construction to this issue should be given in the absence of express authority by statute or regulation. See AGO 1959-1960, No. 20.

² Liability of the attending physician and nurse may also be at issue. In the Tatro case, the Texas Medical Association and the Dallas County Medical Society submitted a “friend of the court” brief in which they addressed the issue of the liability of an attending physician under Texas law where no system existed in a school to assure that only qualified individuals carried out the physician’s order. Tatro, 516 F. Supp. at 994. With regard to the liability of an attending nurse, WAC 308-120-710(14) makes a nurse subject to disciplinary action for “delegating to unlicensed persons those functions or responsibilities that are to be performed only by licensed persons.”

³ There may also be potential criminal as well as tort liability. RCW 18.130.190 provides that it is a gross misdemeanor to practice a profession without a license, unless otherwise exempted.

⁴ This issue may be resolved by means of a determination as to whether catheterization in the school setting is a minor nursing service. This may be made either by the Legislature in statute or by the Board of Nursing in regulation. The Legislature could enact an explicit exception such as the one appearing in RCW 28A.31.150 for the administration of oral medication in the school setting. The Board of Nursing could promulgate a regulation more clearly defining “minor nursing services”.