STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 6, 1970
Miss Mary Ochs, R.N.
Executive Secretary
South Dakota Board of Nursing
Mitchell, South Dakota 57301
OFFICIAL OPINION NO. 70-38
Nursing in South Dakota, a licensed practical nurse has no legal right to supervise nursing care of patients; standards prohibiting a licensed practical nurse from instructing in nursing education are valid. SDCL 36-9-3(1); 36-9-4(1) 36-9-30(2)
Dear Miss Ochs:
You have requested an official opinion based on the following facts:
The South Dakota Board of Nursing, at its March 31/ April 1, 1970 meeting, adopted a rule or regulation, the effect of which is to declare that a licensed practical nurse does not have the legal right to supervise nursing care of patients.
As a practical matter, this regulation of the South Dakota Board of Nursing has been interpreted by the Board to mean that in a recognized South Dakota school of practical nursing, the instructors must be registered or professional nurses, and a licensed practical nurse may not act as an instructor in such school, but may only assist such registered nurses in nursing education.
You have submitted with this factual situation this question:
Is the action taken by the Board at its March 31/ April 1, 1970 meeting, consistent with SDCL 36-9, which sets forth the laws regulating the nursing profession in South Dakota?
SDCL 36-9-3 and 36-9-4 defines the practice of professional nursing and the practice of practical nursing. These statutory determinations are applicable and regulate the activities of nurses authorized to practice their profession in South Dakota.
SDCL 36-9-3(1) states:
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 foregoing shall not be deemed to include the practice of medicine or dentistry.
SDCL 36-94(1) states:
The 'practice of practical nursing' means the performance for compensation of any acts in the care of the ill, injured or infirm and the administration of medicines and treatments as prescribed by a licensed physician or licensed dentist under the supervision of a licensed professional nurse, a licensed physician, or a licensed dentist; and not requiring the substantial specialized skill, judgment and knowledge required in professional nursing.
There can be no doubt that there is a distinction between those things that a registered or professional nurse may perform, and those which a licensed practical nurse can perform. The Legislature has declared that supervision is lodged in the professional registered nurse. It has further declared that the licensed practical nurse may perform only under the supervision of a licensed professional nurse.
It is my opinion that the State Board of Nursing in taking its actions on March 31/April 1, 1970 acted consistently with SDCL 36-9. Such action is legal and valid.
In determining whether or not this particular statement of policy, rule or regulation, or what you desire to call it, may be applied to nursing education, the aforesaid stated definitions of what constitutes professional nursing and what constitutes practical nursing make it apparent that it is only the "Registered Professional Nurse" who may engage in instruction in nursing education. Such application of such statement of policy to nursing education is consistent with our statutes.
SDCL 36-9-30(2) which governs those who may even apply to take the examination to be licensed as a practical nurse, in part provides that such applicant must show that he has completed the approved program for professional nursing and hold a diploma or certificate therefrom.
It is my opinion, from the entire statutory provisions of SDCL 36-9, that the determination of what constitutes an "approved program for professional nursing," must be determined by the South Dakota State Board of Nursing. It would be a mere mockery to state that while the Board can determine what constitutes an approved program for nursing, it cannot determine the qualifications of the teachers of such nursing education. Such conclusion is untenable.
The State Board of Nursing can determine the qualifications of instructors in the South Dakota nursing schools.
Its determination that only registered professional nurses may instruct in an approved nursing school, or may only instruct in an approved program of nursing education is consistent with the limitations our Legislature placed upon the practice of nursing in this state.
It is my conclusion that the regulation that only registered professional nurses may instruct in nursing education, and such instruction may not be given by a licensed practical nurse, but that such licensed practical nurse may only assist a registered professional nurse in nursing education is consistent with the statutes and is valid regulation.
Respectfully submitted,
Gordon Mydland
Attorney General
