Number 7. September 20, 1968

Number 7. September 20, 1968 HONORABLE ALFRED L. FRECHETTE, M.D. Commissioner ofPublic Health State House Boston, Massachusetts 02133 Dear Doctor Frechette: You have requested my opinion as to the validity of action by the Department of Public Health in eliminating nursing notes from a regulation which defines the data required to be included in the medical records that hospitals must keep pursuant to G.L. c. 1 1 1, § 70. The required content of hospital medical records is defined in the "Licensure Rules and Regulations for Hospitals and Sanatoria in Massachusetts" (1950), which are applicable to all hospitals licensed by the Department of Public Health. Prior to this elimination of nursing notes from the required records, Chapter Two (II) (C) (1) of these rules provided: "The medical record shall include date of admission; identifica- tion data; chief complaint; history of present illness; past history; family history; physical examination; provisional diagnosis; reports of special examinations or procedures, including consultation; clinical, laboratory and X-ray reports; complete surgical and dental record; medical, surgical and dental treatment; progress and nursing notes; graphic bedside charts; final diagnosis; condition on discharge; date of discharge; autopsy report, if any." (Emphasis supplied.) After a public hearing under G.L. c. 30A, the Department on December 12, 1967, approved the deletion of the words "and nursing" from this regulation. P.D. 12 41 1. Scope ofReview. I regard my role in passing on the validity of the deletion of "nursing notes" from the regulation defining the content of required medical records, as confined to a determination of whether the Department's action was unlawful on its face, being demonstrably beyond its authority. This is to say, the issue as it stands before me is limited to whether, wholly apart from factual matters which might be developed in an adversary proceeding, the action was clearly in conflict with the applicable statutes or demonstrably exceeded the Department's authority. Cf. Board of Old Age Assistance of Natick v. Commissioner of Public Welfare, 326 Mass. 121, 124. The wisdom, as distinguished from the legality, of the Department's action, is beyond my province. Cf Silverman v. Board of Registration in Optometry, 344 Mass. 129, 135. Indeed, because my review of a questioned regulation occurs without the benefits of an adversary proceeding, my scope of review is, as a practical matter, even more narrowly circumscribed than that of a reviewing court. 2. Nature ofNursing Notes. You state that nursing notes are "made up largely of observations of the nursing personnel and these observations are recorded by the nurse." You also state that "it is the job of the attending physician to determine the significance of the notes and all details of importance should then be recorded in the progress notes, which are his responsibility." You have furnished me with certain extracts from nursing literature. One extract states that "the nurse's notes must be an accurate and purely factual report of her observations of the patient and the care he has received." 1 Another extract reads in pertinent part: "It is the nurses' responsibility to maintain concise, orderly, and up-to-date records on each patient. In hospital practice, this is simplified by the use of standardized record forms for the various types of information. The record will include the charting of temperature, pulse and respiration, bowel movements, urinary outputs, listing of medications used and treatments administered, the result of examinations, and observations by the nurse and all other pertinent information. Recording must be entered immediate- ly, for it is very unwise to rely too greatly on memory. The physician frequently refers to the record and therefore it is essential that it be properly kept to avoid confusion and to enable him to obtain information with a minimum of time and trouble." 2 You have also called to my attention the fact that the Joint Commission on the Accreditation of Hospitals, a national hospital accreditation agency, "has no requirements concerning nurses notes. It is the responsibility of the hospital's medical and nursing staffs to develop policy concerning the type and extent of nurses notes to be kept." 3 3. The Department's Rule-Making Authority. The Commissioner of Public Health together with the Public Health Council (of which the Commissioner is an ex officio member, G.L. c. 17, § 3), comprise the Department of Public 'Hayt, et al., "The Law of the Hospital and Nurse" (Hospital Textbook Company, 1958) page 316. 2 Petry, "The Encyclopedia of Nursing," (W. B. Saunders, 1952). 3As quoted from Hayt, et al., "The Law of Hospital and Nurse," supra, page 318. The Joint Commission is sponsored by the American Medical Association, the Canadian Medical As- sociation, the American College of Physicians and the American Hospital Association. 42 P.D. 12 Health. G.L. c. 17, § 1. Within the Department, the Public Health Council is the general rule-making body. General Laws c. 1 1 1, § 3 provides in pertinent part: "The council shall make and promulgate rules and regulations, take evidence in appeals, consider plans and appointments required by law, hold hearings, and discharge other duties required by law; but it shall have no administrative or executive functions." General Laws c. 1 1 1, § 53, as most recently amended by St. 1967, c. 891, § 3, provides in pertinent part: 'The department [of public health] shall, after a public hearing, promulgate rules and regulations for the conduct of hospitals and clinics. Such rules and regulations shall include requirements for diagnostic and therapeutic facilities for the study, diagnosis, treatment and care of patients, and the keeping of proper medical records." Thus, these statutes confer on the Department's Public Health Council not only a general rule-making authority, but also a specific authority to regulate "requirements for . . . the keeping of proper medical records." In view of these provisions of law and the material reviewed above as to the general nature of nursing notes, I cannot rule that the elimination of nursing notes as part of the requirements for medical records is demonstrably beyond the Department's authority and thus invalid. Nor can I hold that G.L. c. 1 1 1. § 70, which requires licensed hospitals to "keep records of the treatment of the cases under their care and the medical history of the same," mandates otherwise. This provision does not purport to define the specific content of the records required to be kept. This conclusion finds support in the doctrine that an administrative agency may exercise its rule-making powers to define statutory terms that have been left undefined by the legislature. See Pacific Coast European Conference v. Federal Maritime Commission, 376 F.2d 785 (D.C. Cir. 1967). Your request for my opinion, I note, goes beyond the mere deletion of nursing notes from the regulation. It also asks in general terms whether the Department is precluded from "regulating what the content of the medical record shall contain." 1 am not inclined to express an opinion on this broad question, since without a specification of particular items, I am not in a position to make an adequate determination. Conceivably, certain kinds of records may be required by law and may not be subject to administrative variation. Very truly yours, ELLIOT L. RICHARDSON Attorney General