March 10, 1976
Mr. J. O. Hogue
Moody County State's Attorney
Flandreau, South Dakota 57028
OFFICIAL OPINION NO. 76-30
Application of massage laws to professional nursing practice
Dear Mr. Hogue:
You have requested an opinion based on the following factual situation:
A self-employed professional nurse (R.N.) renders services to patients in their homes or facilities other than a licensed establishment or institution. Part of the services she renders to her patients is physical therapy including the use of massage.
Based on the above facts you ask the following question:
Is a registered nurse exempt from the requirements of the massage laws (SDCL 36-1OA) or is she required to be licensed as a technician pursuant to SDCL 36-10A-13?
SDCL 36-10A-9 provides:
It shall be unlawful for any person or persons to engage in the practice, or attempt to practice, massage; to act as a massage technician for a fee, for a gratuity, or as a free demonstration; or to conduct or teach massage, without a license issued pursuant to the provisions of this chapter.
However, SDCL 36-1OA-ll further provides:
Persons licensed under the provisions of this title, while practicing within the limits of their licensure, shall not be prohibited therefrom by the provisions of this chapter.
Therefore, in order to give full meaning to the above provision the scope of practice of a professional nurse, as specified in SDCL 36-9, must be examined.
The scope of practice of an R.N. is defined in subdivision (1) of SDCL 39-9-3 as follows:
As used in this chapter:
(1) The "practice of professional nursing" means the performance for compensation of any act in the observation, care, evaluation, and counsel of the ill, injured or infirm, or in the maintenance of health or prevention of illness of others or in the supervision and teaching of other personnel, or the administration of medications and treatments as prescribed by a licensed physician or licensed dentist; requiring substantial specialized judgment and skill and based on knowledge and application of principles of biological, physical and social science. The professional nurse may perform in addition to the foregoing, such special acts, with appropriate training, delegated by a physician licensed under the Medical Practice Act of South Dakota or by the medical staff of an employing medical facility licensed by the state of South Dakota. The foregoing shall not be deemed to include the practice of medicine, dentistry, or pharmacy.
The practice of professional nursing is contingent, of course, on compliance with educational and training requirements (SDCL 36-9-58 et seq.) and licensing pursuant to SDCL 36-9-27 et seq.
Neither the South Dakota law nor rules adopted by the State Board of Nursing pursuant to the general authority granted by SDCL 36-9-21 provide sufficient Clarification for me to determine if a particular nurses training program qualifies the student in the art of massage. However, it is my opinion that the legislative intent of SDCL 36-lOA-ll is to permit otherwise qualified persons to utilize massage techniques in the practice of their profession.
The answer to your specific question is: a professional nurse as defined in SDCL 36-9-3 is exempt from the provisions of SDCL 36-lOA provided she is trained in the field of massage and the scope of her licensure contemplates said practice.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:LLV:dk
