Kansas Attorney General Opinion 2012-029

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STATE OF KANSAS
OFFICE OF THE ATTORNEY GENERAL

DEREK SCHMIDT MICO, Hil

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November 13, 2012

ATTORNEY GENERAL OPINION NO. 2012-29

Kelli Stevens, General Counsel
Kansas State Board of Healing Arts
800 SW Jackson, Lower Level-Suite A
Topeka, KS 66612

Re: Public Health—Healing Arts—Delegation of Acts Which Constitute the
Practice of Healing Arts

Schools—General Provisions—School Sports Head Injury Prevention Act

Synopsis: The evaluation and clearance required by the School Sports Head Injury
Prevention Act for a school athlete who is suspected of having suffered a
concussion or head injury must be performed by a health care provider as
that term is defined in the Act. Cited herein: K.S.A. 2011 Supp. 65-
28,127; K.S.A. 65-28a02; 65-28a08; K.S.A. 2011 Supp. 65-6902; 65-6906;
72-135.

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Dear Ms. Stevens:

As General Counsel for the Kansas State Board of Healing Arts, you ask whether the
School Sports Head Injury Prevention Act! allows a health care provider to delegate the
required evaluation and wnitten clearance of a school athlete who has been removed
from a sports competition or practice due to a suspected concussion or head injury.

The School Sports Head Injury Prevention Act provides, among other things, that a
school athlete who “Suffers, or is suspected of having suffered, a concussion or head
injury during a sport competition or practice session ... shall be removed from” the

'KS.A. 2011 Supp. 72-135.

Kelli Stevens
Page 2
competition or practice.2 The athlete “shall not return to competition or practice until the
athlete is evaluated by a health care provider and the health care provider provides
such athlete a written clearance to return to play or practice.”3
The Act defines “health care provider” as “a person licensed by the state board of
healing arts to practice medicine and surgery.” 4 You inform us that this definition
includes doctors of medicine and osteopathy (M.D.s and D.O.s). 	It does not, however,
include other persons who provide patient services, such as physician assistants,
nurses, or athletic trainers. 5
Although these persons are not health care providers for purposes of the School Sports
Head Injury Prevention Act, you believe that they may provide the required examination
and clearance of a school athlete when delegated such authority by a heath care
provider. 	You note that the Healing Arts Act authorizes health care providers, within
certain parameters, to “delegate[ ] acts which constitute the practice of the healing arts
to other persons.”6 Additionally, the Physician Assistant Licensure Act 7 defines the
practice of a physician assistant as “medical services within the education, training and
experience of the physician assistant that are delegated by the responsible physician,”8
while the Athletic Trainer Licensure Act 9 provides 	that a licensed physician may
delegate 	to 	an 	athletic 	trainer 	the 	acts 	of 	“injury 	prevention, 	physical 	evaluation,
emergency care and referral or physical reconditioning relating to athletic activity.”10
Importantly, though, the statutes you cite are all contained in acts that govern the
licensure of health care professionals. When these statutes refer to delegation, they are
best read as describing the process by which a physician authorizes other persons to
perform certain medical tasks that would otherwise constitute the unlicensed practice of
medicine. 	Thus, it is clear that a physician assistant, nurse, or athletic trainer who
evaluates a school athlete with a head injury does not engage in the unauthorized
practice of the healing arts as long as the person complies with these statutes. But that
does not mean that a school athlete who has been evaluated by physician assistant,
nurse, or athletic trainer has been evaluated and cleared by a health care provider,
which is what the plain language of the School Sports Head Injury Prevention Act
requires. 11
2 K.S.A. 2011 Supp. 72-135(e).
3 K.S.A. 2011 Supp. 72-135(f).
4 K.S.A. 2011 Supp. 72-135(b)(2).
5 See, e.g., K.S.A. 65-28a02 (defining a “physician,” as opposed to a physician assistant, as “any person
licensed by the state board of healing arts to practice medicine and surgery”).
6 K.S.A. 2011 Supp. 65-28,127.
7 K.S.A. 65-28a01 et seq.
8 K.S.A. 65-28a08.
9 K.S.A. 2011 Supp. 65-6901 et seq.
10 K.S.A. 2011 Supp. 65-6902(b); 65-6906(d).
11 We note, however, that the School Sports Head Injury Prevention Act does not preclude other persons
from assisting in the required evaluation.

Kelli Stevens
Page 3
Because the text of the School Sports Head Injury Prevention Act unambiguously states
that the required evaluation and clearance must be provided by a “health care provider”
as that term is defined in the Act, there is no need to consider the Act’s legislative
history. 12 In any event, this legislative history is a mixed bag. 	The Act was first
introduced as 2011 Senate Bill 33, which was referred to the Senate Public Health and
Welfare Committee.13 That committee considered defining the term “health care
provider” to mean “a person licensed to practice medicine or surgery, or an advanced
registered 	nurse 	practitioner, 	a 	physician 	assistant, 	or 	an 	athletic 	trainer 	working
pursuant to delegation by or a written collaboration agreement with a person licensed to
practice medicine or surgery.”14 The committee rejected the italicized language and
instead defined “health care provider” as “a person licensed to practice medicine or
surgery.”15 This indicates that the committee did not intend to allow nurses, physician
assistants, or athletic trainers to provide the required examination and clearance.
Of course, it is possible that the committee members believed the language they
rejected was unnecessary to allow persons delegated by a health care provider to
perform the evaluation and clearance. 	The supplemental notes to the bill suggest as
much in that they all include a paragraph stating “KSA 65-28,127 outlines the written
protocol process which allows a person licensed by the State Board of Healing Arts to
practice medicine or surgery or chiropractic to enter into a practice protocol or delegate
to other persons those acts and functions within the normal and customary specialty,
competence and lawful practice of the responsible licensee.” 16 But these supplemental
notes also contain a disclaimer stating that they were “prepared by the Legislative
Research Department and do not express legislative intent.”17
Although the legislative history of the School Sports Head Injury Prevention Act is
ambiguous, its text is clear. 	Given this plain language, we opine that the examination
and clearance required by the Act must be provided by a health care provider, i.e., a
person licensed to practice medicine and surgery, not a person delegated by such a
heath care provider.
Sincerely,
Derek Schmidt
Attorney General
12 Miami County Bd. of Comm’rs v. Kanza Rail-Trails Conservatory, Inc., 292 Kan. 285, 320 (2011).
13 The Act ultimately was incorporated into and passed as part of 2011 House Bill 2182.
14 Minutes, Senate Public Health and Welfare Committee, February 15, 2011.
15 Minutes, Senate Public Health and Welfare Committee, February 16, 2011.
16 Supplemental Note on Sub. for 2011 SB 33, As Recommended by Senate Committee; Supplemental
Note on Sub. for 2011 SB 33, As Amended by Senate Committee of the Whole; Supplemental Note on
Sub. for 2011 SB 33, As Amended by House Committee.
17 Id.

Kelli Stevens
Page 4

Dwight Carswell
Assistant Attomey General

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