Untitled Texas Attorney General Opinion ( 1970 )

Dr. J. E. Peavy Opinion No. M-609
Commissioner of Health
Texas State Department of Health' Re: Validity of certain
Austin, Texas 78756 rules and regulations
of the State Health
Dear Dr. Peavy: Department.
Pursuant to the provisions of Article 4590b,
Vernon's Civil Statutes, certain rules and'regulations
have been proposed for.adoption by the State Board of
Health. These rules and regulations read as follows:
"In addition to items specifically set
forth in S.B. 230 the following shall also be
required prior to the issuing of any permit
to operate an ambulance within the State of
Texas.
"A. ,Required:'Equipment - There will be on
board,at all ,times the following items of equip-
ment :
"1. Hinged half-ring lower extremity
splint with web straps for ankle hitch
"2. Twoor more ~padded boards,I-l/2
feet in.length,-and-.3:incheswide and two or
more similar padded.boards 3 feet in length
and ,3"inches'uide;.of material~compareblee..to
four-ply woodi.:forlcoaptation splinting-of'
fracture'of leg-or+-thigh
*~.:~,Two or more padded 15 inch by 3 "
inch wood or cardboard~splints for fractures
of the forearm
*4;' Shortiand long back boards with 2
inch webbing.:.etrapsfor extrication of Victims
with spine injuries
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, .
Dr. J. E. Peavy, page 2 (M-609)
“5. Oxygen tanks and masks,of assorted
sizes for administration of oxygen
"6. Hand operated bag-mask resuscitation
unit with adult, child and infant size masks
(unit capable of being attached to oxygen supply
preferred)
"7. Simple suction apparatus with catheter
"8. Mouth-to-mouth, two-way resuscitation
airways for adults (1) and children (1)
"9. Oropharyngeal airways (3)
"10. Mouth gags made of three tongue blades
taped together and padded
"11, Universal dressing, approximately 10
inches by 36 inches packaged folded to 10 inches
by 9 inches
"12. Sterile gauze pads
"13. One, 2 and 3 inch.,adhesive tape on
cylinder
"14. Six-inch by 5 yard,soft roller type
bandages
"15., Triangular bandages
"16. Safety pins, large size
-ii. Bandage shears
"18. Several pillows
"This represents the minimal equipment list as
prescribed by the American College ,of.Surgeons Com-
mittee on Trauma.
"B. Ambulance Attendants - There shall at all
times be two ambulance attendants on each ambulance
while it ie in operation. All attendants will
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Dr. J. E. Peavy, page 3 (M-609)
satisfactorily complete the Emergency Care
Training Course for ambulance attendants which
is offered free of charge throughout the state
by the Texas State Department of Health at such
times as it is offered within their area. Am-
bulance attendant means an individual responsible
for the operation of an ambulance and the care
of the patients whether or not the. attendant
also serves as a driver.
"C. Non-Compliance - Following notification
by a representative of the Texas State Depart-
ment of Health, Disaster Health and Medical
Services, of non-compliance with this act or the
rules and regulations set forth to enforce it,
the licensee shall within 14 days:
-
"1.. Notify the Texas State Department of
Health,.Disaster Health and Medical Services, in
writing that remedial measures have been taken
to secure compliance:
"2..~ Forward.to;the Texas State Department
of Health, DIMS written notice:of cause for not
complying with thir,act and the rules and
regulations prescribed for enforcing it, and
request a hearing;
1.
3. Cease;operations and. forward his am-
bulance permit(s) to the Texas State Department
of Health, DHWS by. registered mail. "
,~1D. ;~.:
Hearing i Whena hearing is requested
it shall be held within 21,days from the date of
request and will:be held at' the Texas State De-
partment of.Health in Austin, Texas. Within 10
days after conclusion of nuch hearing, a written
decision as to the statusof said ambulance per-
mit shall be submitted to the licensee."
With regard to the above.propoaed rules, you ask
the following questionsr
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Dr. J. E. Peavy. page 4 (M-609)
"(1) Since the above quoted Section 2 pre-
scribes minimum equipment to be carried on these
vehicles, may the Board of Health, by rules and
regulations, expand the amount of equipment to
be carried by the permittee's vehicle7
"(2) In the event that your answerto;'
Question No. 1 is in the negative, then may the
Board of Health, through then rule-making authority
granted in 459033, set the minimum contents of the
first aid.kit prescribed by Section 2a of the Act?
"(3) In the event that your answer to
Question No. 1 is,,in*.theaffirmative, are'per-
mitteee in..violation~~~of,rulee
and regulations
promulgated by the~State Board of Health for.
the purpose of carrying.out this Act subject
to the penalty provided in Section 5 of the
Act?
"(4) Are the,,existing regulations set.out
in Attachment No. 1 valid asbeing within the
regulatory.powers granted the,Board of Health by
the Act?
"(5) If approved by the Board of Health,
will the proposed regulationo'ae set out in
Attachment No, 2 be:valid as being within the
regulatory powers granted the Board of Health
by the Act?"
Sections l~and.?..of Article 4590b, Vernon's Civil
Statutes, provide:
7Section.l;~~~d.persoa,-.,iirm:.orcorporation
'sh& operakec..or'cauee' to b?:operated, in thk,
Stater.of.~Texae,:.any~.eoergency. arpbulance:,pu&~lio
or private.,or imy:;other vehicle aomuon&y'.used
for tbe.transportation:or conveyance of,the sick
or injured., without first securing a permit
therefor~.from the State Board of Health as
hereinafter provided.
"Secw 2. 'Every ambulance, ,patrol auto-
mobile..or.vehicle hereinafter .described, be-
fore permit.16 issued therefoc,, shall be
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Dr. J. E. Peavy, page 5 (M-609)
equipped with and, when in service, carry as
minimum equipment the following:
" (a) A first aid kit;
"lb) Traction splints fork the proper trans-
portation.of fractures of the extremities."
.Section 4 authorizes the State Board of Health to
adopt rules and regulations “for the,purpose of carrying out
this Act" and states that it shall be the duty of the State
Board of Health to issue a permit to applicants, and further
provides:
".Any such permit may be subject to revo-
cation.by the State, Board of Health upon the
finding by:~a public health officer of any
political sub-division of this state.that said
permittee has failed to comply,with the pro-
visions df this Act or the rules and regulations
of the State Board of Health; provided, however,
that said permittee is: given notice and an op-
portunity'to'be heard;"
Sections j,provides:
"Sec. .5. Any'person violating any pro-
vision of this Act'shall, upon conviction ~~"
thereof, be punished by a fine of not to ex-
ceed One Hundred ($lOO"OO) Dollars."
If:'the.rules'.and':reg~latione
'adopted by the State
Board of ~ehl~h~~~~~s~~~~~~~~~e'~~rovisions of Article 4590b,
"'are~:~&ansietent
Vernon's Cipil~,Stptutee," ") with,,related'to,
and an iihpleiae~tatio~fofiany'.of'th~'provisio~~'of,~Article
4590b. suchrules and,~regulations are valid. Kee’v. Baber,
157 Tex. 387, 303 S.W.Zd 376 (1957).:.Texas State Board of
Examinere~in..Optometry v. Carp, 412 S.W.Zd 307 (Tex.Sup. 1967).
Applying the above test to the rules and regulations
submitted by.you, we note that the Legislature did not
specify.the minimumrequirements for first aid kits, nor for
traction splints "for the proper' transportation of fractures
of the extremities, ".rather it left such details to be im-
plemented by reasonable~rules and regulations of the,,State
Board of Health. It is further noted that the required
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Dr. J. E. Peavy, page 6 (M-609)
equipment prescribed in the proposed rules constitutes the
minimal equipment list as prescribed by the American College
of Surgeons Committee on Trauma and therefore in our opinion
properly implements Section 2 of Article 4590b.
Your questions are therefore summarily answered.
With reference to question Nos. 1, 4 and 5, you are advised
that the State Board of Health, by rules and regulations,
may define what constitutes minimal equipment for a proper
first aid kit and traction splints for the proper trans-
portation. of fractures of the extremities. It is our opinion
that the included rules and regulations are reasonable and
constitute a proper exercise of the rula-meking power of the
Board since such rules are an‘implamentation of the pro-
visions of Article 4590b.
In'view of'.our answer to question.No. 1, it is
unnecersaty..to..anewer.
question No. 2.
In answer to question No. 3, you are advised that
if any person holding a permit to operate an ambulance vio-
lates.such rules and regulations , the permit issued by the
State Board.of Health may be revoked;.blyi$heState Board of
Health upon a determination by the.Boe& that raid permittee
has failed-tooomply with the rules and regulations of the
Board. Thereafter,' if such person operate8 an ambulance
without a valid permit, such person is subject to the penal-
ties provided'in Section 5 of Artiale 4590b.
SUMMARY
.The:Stats Soard,of liealfh.,aay.adopt8uch
reamonable:,ruka~hd~ regulations~~i&ating to
~ainillrrl;equigaunt"for,uPbul~~*;.ai q eon-
sirtbnt.wi*,: ielated~:
to;and:'.ur-.*lbsntation
of’ SictioicZof Artiola 459Ob, ~e~On~'~~'C~vil,
Statutas.~, ..
Preparedby .Joha Itawes
Assistant Attorney: General
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Dr. J. E. PeaVy, page 7 (M-609)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Ronald Luna
Chat&es Parrett
John Banks
Kenneth Nordquist
MJZADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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