Kansas Attorney General Opinion 2020-002

February 4, 2020
ATTORNEY GENERAL OPINION NO. 2020- 2
Daniel W. Peters
Senior Vice President, General Counsel
University of Kansas Health System
4000 Cambridge St.
Kansas City, KS 66160
Re: 	Public 	Health—Regulation 	of 	Nursing—Nurses—Advanced 	Practice
Registered 	Nurse; 	Roles; 	Delegation 	of 	the 	Determination 	of
Cardiopulmonary Death; Accepted Medical Standards
Public 	Health—Healing 	Arts—Kansas 	Healing 	Arts 	Act; 	Purpose;
Definitions; Reports to State Board of Healing Arts—Licensees Who Direct,
Supervise, Order, Refer, Accept Responsibility For, Enter Into Practice
Protocols With or Delegate Acts Which Constitute Practice of Healing Arts
to Others; Requirements and Limitations; Delegation of the Determination
of Cardiopulmonary Death; Accepted Medical Standards
Public Health—Physician Assistants—Definitions; Practice of Physician
Assistant; Direction and Supervision of Physician; Rules and Regulations;
Delegation of the Determination of Cardiopulmonary Death; Accepted
Medical Standards
Statutes; Administrative Rules and Regulations and Procedure—Statutory
Construction; Determination of Death; Delegation of the Determination of
Cardiopulmonary Death; Accepted Medical Standards
Synopsis: 	A physician licensed by the Kansas State Board of Healing Arts to practice
medicine and surgery may delegate acts which would constitute the practice
of healing arts to a person licensed by the Kansas State Board of Healing
Arts as a physician assistant pursuant to a detailed plan of care with the
physician. A physician licensed by the Kansas State Board Healing Arts to
practice medicine and surgery may delegate acts which would constitute

Mr. Daniel W. Peters
Page 2
the practice of healing arts to a person licensed by the Kansas State Board
of Nursing as an advanced practice registered nurse in the role of clinical
nurse specialist or nurse practitioner pursuant to a collaborative practice
agreement with the physician. No statutes or regulations prohibit or limit a
physician 	delegating 	to 	a 	physician 	assistant 	the 	determination 	of
cardiopulmonary death pursuant to the detailed plan of care with the
supervising physician or to an advanced practice registered nurse pursuant
to the collaborative practice agreement with the physician. 	Whether a
physician assistant or an advanced practice registered nurse practicing as
a clinical nurse specialist or nurse practitioner can make a determination of
cardiopulmonary death “in accordance with accepted medical standards” is
a question of fact. 	Cited herein: 	K.S.A. 22a-231; 65-1113; 65-2412; 65-
2801; 65-2836; 65-2837; 65-2869; 65-2870; 65-2873; 65-28,127; 65-28a01;
65-28a02; 65-28a08; 77-202 (Weeks); 77-204; 77-205; 77-206; K.A.R. 60-
11-101; K.A.R. 60-11-102; K.A.R. 60-11-104; K.A.R. 60-11-107; K.A.R.
100-28a-6; K.A.R. 100-28a-9; K.A.R. 100-28a-10.
* 	* 	*
Dear Mr. Peters:
As general counsel for the University of Kansas Health System, you ask for our opinion
on whether determinations of cardiopulmonary death may be made by (1) a licensed
advanced practice registered nurse (APRN) in the role of clinical nurse specialist or nurse
practitioner 	pursuant 	to 	accepted 	medical 	standards 	and 	a 	collaborative 	practice
agreement with a physician or (2) a licensed physician assistant (PA) pursuant to
accepted medical standards and a detailed plan of care with a physician. For the reasons
explained below, we opine that the answer to your questions is yes if the physician is
licensed by the Kansas State Board of Healing Arts to practice medicine and surgery, the
statutory requirements for delegation are met, and the accepted medical standards do
not prohibit such delegation to a PA or APRN.
Determinations of Death
The earliest statute addressing the determination of death required that the determination
be made “in the opinion of a physician, based on ordinary standards of medical practice.” 1
In 	1984, 	the 	Kansas 	Legislature 	repealed 	this 	statute 2 	and 	enacted 	the 	Uniform
Determination of Death Act (UDDA). 3 Under the UDDA, death occurs when an individual
has “sustained either (1) irreversible cessation of circulatory and respiratory functions, or
(2) irreversible cessation of all functions of the entire brain, including the brain stem.” 4
The former definition of death is referred to as “cardiopulmonary death” and the latter is
1 L. 1970, Ch. 378, § 1; codified in K.S.A. 77-202 (Weeks).
2 L. 1984, Ch. 345, § 4.
3 Id. at §§ 1 - 3. The UDDA was codified in K.S.A. 77-204 through K.S.A. 77-206.
4 K.S.A. 77-205.

Mr. Daniel W. Peters
Page 3
referred to as “brain death.”5 	The UDDA is silent on who makes the determination of
death. Thus, we first review the Kansas Healing Arts Act 6 to determine whether there are
any statutory prohibitions or restrictions on a physician delegating the determination of
cardiovascular death.
Kansas Healing Arts Act
Under the Healing Arts Act, a physician is a person who is licensed by the Kansas State
Board of Healing Arts (Board of Healing Arts) to practice medicine and surgery and
osteopathic medicine and surgery. 7 	The Healing Arts Act authorizes a physician to
delegate to others, as follows.
Every supervising or responsible licensee who directs, supervises, orders,
refers, accepts responsibility for, enters into written agreements or practice
protocols with, or who delegates acts which constitute the practice of the
healing arts to other persons shall:
(1) Be actively engaged in the practice of healing arts in Kansas;
(2) review and keep current any required written agreements or practice
protocols 	between 	the 	supervising 	or 	responsible 	licensee 	and 	such
persons, as may be determined by the board;
(3) direct, supervise, order, refer, enter into a written agreement or practice
protocol with, or delegate to such persons only those acts and functions
which the supervising or responsible licensee knows or has reason to
believe can be competently performed by such person and is not in violation
of any other statute or regulation;
(4) direct, supervise, order, refer, enter into a written agreement or practice
protocol with, or delegate to other persons only those acts and functions
which are within the normal and customary specialty, competence and
lawful practice of the supervising or responsible licensee;
(5) provide for a qualified, substitute licensee who accepts responsibility for
the direction, supervision, delegation and written agreements or practice
protocols with such persons when the supervising or responsible licensee
is temporarily absent; and
5 In a memorandum attached to your opinion request, it was emphasized the request did not encompass
determinations of death under K.S.A. 77-205(2), which presents a more complex set of medical questions,
and is based on neurological criteria or an anticipated effort to transplant a person’s organs before cessation
of heart or lung functions as those events usually coincide with brain death determinations. Memorandum
by Fred Logan and Andrew Logan, Logan, Logan & Watson, L.C., Attorneys at Law, dated June 12, 2019,
at p. 2 and 3.
6 K.S.A. 65-2801 et seq. and K.S.A. 65-28,122 through K.S.A. 65-28,132.
7 Attorney General Opinion No. 87-42.

Mr. Daniel W. Peters
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(6) comply with all rules and regulations of the board establishing limits and
conditions on the delegation and supervision of services constituting the
practice of medicine and surgery. 8
A responsible licensee is a physician who “has accepted responsibility for the actions of
persons who perform acts pursuant to written agreements or practice protocols with . . .
such responsible licensee.” 9
In summary, the Healing Arts Act gives a physician broad authority to delegate acts which
would constitute the practice of the healing arts to a PA or an APRN if the PA or APRN is
competent to perform the delegated act or function; the delegated act and function is
within the supervising physician’s specialty, competence, and lawful practice; and the
delegation does not violate any law. The first two conditions involve questions of fact that
are determined on a case-by-case basis. The last condition requires determining whether
there are any restrictions or prohibitions regarding delegation by a physician. One such
restriction may occur if the physician is required to notify the coroner of a death from other
than natural causes. 10 We therefore review the Physician Assistant Licensure Act11 and
the Kansas Nurse Practice Act (KNPA) 12 to determine if those acts have limitations or
prohibitions on the delegation of the determination of cardiopulmonary death.
Physician Assistant Licensure Act
A PA is a person licensed by the Board of Healing Arts “who provides patient services
under the direction and supervision of a supervising physician.” 13 	A “supervising
physician” is “a physician who has accepted responsibility for the medical services
rendered and actions of the physician assistant while performing under the direction and
supervision of the supervising physician.” 14 	The “direction and supervision” by the
supervising physician does not require the immediate or physical presence of the
supervising physician during the performance of work by the PA. 15 Like the Healing Arts
Act, the Physician Assistant Licensure Act authorizes only physicians who are licensed
to practice medicine and surgery to be a supervising physician for a PA. 16
8 K.S.A. 65-28,127(a).
9 K.S.A. 65-28,127(b). An osteopathic physician and surgeon is licensed to practice medicine and surgery,
thus, such licensees are also deemed to be physicians. See K.S.A. 65-2870(b).
10 K.S.A. 22a-231.
11 K.S.A. 65-28a01 et seq.
12 K.S.A. 65-1113 et seq.
13 K.S.A. 65-28a-02(a)(4).
14 K.S.A. 65-28a02(a)(5).
15 K.S.A. 65-28a02(a)(2).
16 K.S.A. 65-28a02(a)(3).

Mr. Daniel W. Peters
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The Physician Assistant Licensure Act governs the relationship between a supervising
physician and a PA. 17 In pertinent part, it states:
(a) The practice of a physician assistant shall include medical services
within the education, training and experience of the physician assistant that
are delegated by the supervising physician. 	Physician assistants practice
in a dependent role with a supervising physician, and may perform those
duties 	and 	responsibilities 	through 	delegated 	authority 	or 	written
agreement. 	Medical services rendered by physician assistants may be
performed in any setting authorized by the supervising physician, including,
but not limited to clinics, hospitals, ambulatory surgical centers, patient
homes, nursing homes and other medical institutions.
(b)(1) A person licensed as a physician assistant may perform, only under
the direction and supervision of a physician, acts which constitute the
practice of medicine and surgery to the extent and in the manner authorized
by the physician responsible for the physician assistant and only to the
extent such acts are consistent with rules and regulations adopted by the
board which relate to acts performed by a physician assistant under the
supervising physician’s direction and supervision. 	A physician assistant
may prescribe drugs pursuant to a written agreement as authorized by the
supervising physician. 18
The Board of Healing Arts is required to adopt regulations that govern the practice of a
PA, “including the delegation, direction and supervision responsibilities of a supervising
physician,” and establish conditions and limitations that the Board of Healing Arts
determines to be necessary to protect the public health and safety. 19 	In doing so, the
Board of Healing Arts must consider:
[T]he amount of training and capabilities of physician assistants, the
different practice settings in which physician assistants and supervising
physicians practice, the needs of the geographic area of the state in which
the physician assistant and the supervising physician practice and the
differing degrees of direction and supervision by a supervising physician
appropriate for such settings and areas.20
A physician assistant may perform acts that constitute the practice of medicine and
surgery if authorized on the practice form submitted to the Board of Healing Arts by the
physician assistant and the physician. 21 	This form includes information about each
17 K.S.A. 65-28,127(c). “[T]he physician assistant licensure act shall govern the direction and supervision
of physician assistants by persons licensed by the [Board of Healing Arts] to practice medicine and surgery,”
except as provided by regulations adopted by the Board of Healing Arts to implement K.S.A. 65-28,127.
18 K.S.A. 65-28a08.
19 K.S.A. 65-28a08(d)(1).
20 Id.
21 K.A.R. 100-28a-6(c) and K.A.R. 100-28a-9.

Mr. Daniel W. Peters
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practice location and the type of medical services provided to patients. 22 The physician
assistant must also submit the written agreement that contains, inter alia, “a description
of the medical services and procedures that the physician assistant may perform at each
practice location,” and “a list of medical services and procedures that the physician
assistant is prohibited from performing.” 23 	Another regulation states the supervising
physician may:
Delegate to the physician assistant only those acts that constitute the
practice of medicine and surgery and meet the following conditions:
(A) The supervising physician believes or has reason to believe that the acts
can be competently performed by the physician assistant, based upon the
physician 	assistant’s 	background, 	training, 	capabilities, 	skill, 	and
experience; and
(B) the acts are within the supervising physician’s clinical competence and
customary practice. 24
The Board of Healing Arts also adopted a regulation regarding the evaluation of the PA,
review of patient records by the supervising physician, and periodic review by the
supervising physician of the PA’s performance. 25
In summary, the statutory authorization for a supervising physician to delegate to a PA is
broad and there are no regulations that prohibit a supervising physician from delegating
to a PA a determination of cardiopulmonary death or that limit the circumstances or
practice setting in which a supervising physician may make such delegation to a PA.
Rather, the physician determines the practice location and the acts that the physician
assistant may do or is prohibited from doing. We conclude that there are no statutory or
regulatory 	limitations 	or 	prohibitions 	for 	a 	supervising 	physician 	to 	delegate
determinations of cardiopulmonary death to a PA pursuant to a detailed plan of care with
the supervising physician.
Kansas Nurse Practice Act
Under the KNPA, an APRN is a professional nurse who is licensed by the Kansas State
Board of Nursing (Nursing Board) to function in an advanced role. 26 	The practice of a
professional nurse includes:
[T]he process in which substantial specialized knowledge derived from the
biological, physical, and behavioral sciences is applied to: 	the care,
22 K.A.R. 100-28a-9(d)((1)-(2).
23 K.A.R. 100-28a-9(e)(1)-(2).
24 K.A.R. 100-28a-10(a)(8).
25 K.A.R. 100-28a-10(b).
26 K.S.A. 65-1113(g).

Mr. Daniel W. Peters
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diagnosis, treatment, counsel and health teaching of persons who are
experiencing changes in the normal health processes or who require
assistance in the maintenance of health or the prevention or management
of illness, injury or infirmity; . . . and the execution of the medical regimen
as prescribed by a person licensed to practice medicine or surgery . . . .27
An APRN is authorized “to make independent decisions about advanced practice nursing
needs of families, patients, and clients and medical decisions based on the authorization
for collaborative practice with one or more physicians” but the immediate and physical
presence of the physician is not required when care is provided by an APRN. 28 	A
physician is “a person licensed to practice medicine and surgery” by the Board of Healing
Arts.29
Your request identified only two of the four roles of APRNs—a clinical nurse specialist
and a nurse practitioner. 30 The Nursing Board has specified the functions that a clinical
nurse specialist and a nurse practitioner are authorized to perform. 31 A nurse practitioner
and a clinical nurse specialist are both authorized to “develop and manage the medical
plan of care32 for patients or clients, based on the authorization for collaborative
practice.”33 An authorization for collaborative practice means:
[A]n APRN is authorized to develop and manage the medical plan of care
for patients or clients based upon an agreement developed jointly and
signed by the APRN and one or more physicians. 	Each APRN and
physician shall jointly review the authorization for collaborative practice
annually. Each authorization for collaborative practice shall include a cover
page containing the date of review by the APRN and physician. 	Each
authorization for collaborative practice shall be maintained in either hard
copy or electronic format at the APRN’s principal place of practice.”34
Neither the KNPA nor the regulations adopted by the Nursing Board place any condition,
limitation, 	or 	prohibition 	on 	including 	the 	delegation 	of 	the 	determination 	of
cardiopulmonary death in a collaborative practice agreement between a physician and a
clinical nurse specialist or nurse practitioner. 	Thus, we conclude that there are no
27 K.S.A. 65-1113(d)(1). The KNPA does not define “medical regimen;” however, it differentiates between
a “medical diagnosis” and a “diagnosis.” In the context of nursing practice, a diagnosis is the “identification
of and discrimination between physical and psychosocial signs and symptoms essential to effective
execution and management of the nursing regimen and shall be construed as distinct from a medical
diagnosis.” K.S.A. 65-1113(b).
28 K.A.R. 60-11-101(a).
29 K.A.R. 60-11-101(c).
30 K.S.A. 65-1113(g) and K.A.R. 60-11-102(a), (d), respectively. The functions of an APRN in the role of a
nurse practitioner are set forth in K.A.R. 60-11-104. The functions of an APRN in the role of a clinical nurse
specialist are set forth in K.A.R. 60-11-107.
31 See K.A.R. 60-11-104(b) (nurse practitioner) and K.A.R. 60-11-107(b) (clinical nurse specialist).
32 The term “medical plan of care” is not defined in the KNPA or a regulation adopted by the Nursing Board.
33 K.A.R. 60-11-104(b) (nurse practitioner) and K.A.R. 60-11-107(b) (clinical nurse specialist).
34 K.A.R. 60-11-101(b).

Mr. Daniel W. Peters
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statutory or regulatory limitations or prohibitions that apply to a physician delegating a
determination of cardiopulmonary death to an APRN who is a clinical nurse specialist or
a nurse practitioner pursuant to a collaborative practice agreement.
Accepted Medical Standards
The UDDA requires the determination of death to “be made in accordance with accepted
medical standards.” 35 	Thus, the UDDA does not explicitly require a physician to make
the determination of death. 	Nevertheless, in Attorney General Opinion No. 90-81,
Attorney General Robert Stephen concluded that the determination of death under the
UDDA was a medical diagnosis that is made by a physician. The opinion then clarified:
[W]e do not opine that a physician will actually examine the dead body in
every instance prior to making the determination of death. 	In some
instances, a medical diagnosis of death could be made based upon the
statements of a nurse attending the patient. However, the recognition that
the patient is dead in-fact must come from the physician. . .. The degree to
which the physician may rely on other than personally gained knowledge is
to be determined by application of accepted medical standards, as well as
by the legal standard being applied. 36
The opinion, however, did not address the delegation questions that you raise—whether
a physician may delegate the determination of a cardiopulmonary death in accordance
with accepted medical standards. 	The phrase “in accordance with accepted medical
standards” is not defined in the UDDA, the Healing Arts Act, the Physician Assistant
Licensure Act, or the KNAP or in any regulation adopted by the Board of Healing Arts or
the Board of Nursing. The memorandum included with your opinion request posits that:
[Physician 	assistants 	and 	APRNs] 	have 	the 	requisite 	training 	and
competency 	to 	make 	determinations 	of 	cardiopulmonary 	death 	under
Kansas law and accepted medical standards. It is well established that the
accepted standard for determining [cardiopulmonary] death has been the
permanent absence of respiration and circulation. And it is properly within
the training and education of an APRN and a PA, under Kansas law, to
make a medical assessment as to whether a patient is no longer breathing
or their heart no longer beating.37
By contrast, the Board of Healing Arts in its input letter posits that “accepted medical
standards generally require the ultimate medical determination of cardiopulmonary death
to be made by a physician. … 	Through the licensing process, such physicians are
35
K.S.A. 77-205.
36 Attorney General Opinion No. 90-81; see also K.S.A. 65-2869, K.S.A. 65-2870, and K.S.A. 65-2873.
37 Memorandum by Fred Logan and Andrew Logan, Logan, Logan & Watson, L.C., Attorneys at Law, dated
June 12, 2019, at p. 4. Internal quotations and citation omitted.

Mr. Daniel W. Peters
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determined by the Board to have the minimum medical education and training to make
such medical conclusions.” 38 Additionally, the Board of Healing Arts “disagrees with any
suggestion that [the determination of cardiovascular death] is limited to simply taking
measurements of pulse and respiration. . . . 	[T]his characterization underestimates the
clinical complexity that often accompanies a medical determination of ‘irreversible
cessation of circulatory and respiratory functions.’” 39
These inconsistent positions show the phrase “accepted medical standards” relates not
only to the procedure for the determination of cardiovascular death but also to who can
make that determination. 	During the hearing on the UDDA, the legal counsel for the
National Conference of Commissioners on Uniform State Laws testified the adoption of
the UDDA clarifies the “responsibilities of physicians and eliminates the barriers to the
modern practice of medicine,” and discussed “the use of life-saving machines and when
death was determined when [life-saving machines] are used.”40 	The Kansas Medical
Society requested an amendment that stated: “A determination of death must be made
in accordance with accepted medical standards by a person licensed to practice medicine
and surgery.”41 No action was taken on the request for this amendment.42
It is possible that the issue of whether the determination of cardiopulmonary death can
be made only by a physician may be subject to change since the adoption of the UDDA
in 1984. 	The Kansas Supreme Court explained the concept of “accepted medical
standards” as follows:
“Ordinary standards of medical practice” change as medical knowledge and
technology improve. Under the instructions given in this case, it was for the
jury to determine whether the medical standards required by K.S.A. 1976
Supp. 77-202 had been met. Much of the testimony presented at trial went
to this very point. 	The attack on the statute for failure to specifically
enumerate criteria is held to be without merit.43
In another case, the Court rejected the argument that the phrase “ordinary medical
standards” as used in the statutory definition of death prior to the UDDA should be
38 Tucker L. Poling, Interim Executive Director of the Kansas Board of Healing Arts, dated November 4,
2019, at p. 1.
39 Id. at pp. 1-2. The Board of Healing Arts cautioned that it would investigate a complaint of improper
delegation for unprofessional conduct, which includes “delegating professional responsibilities to a person
when the [physician] knows or has reason to know that such person is not qualified by training, experience
or licensure to perform them. See K.S.A. 65-2836(b) and K.S.A. 65-2837(b)(26). We also caution that
even if the physician delegates the determination of cardiovascular death, the physician retains the
responsibility to complete the medical certification of cause of death for the death certificate. See K.S.A.
65-2412(b).
40 Minutes, House Judiciary Committee, Senate Bill 81, March 21, 1983. Testimony of John McCabe.
41 Minutes, House Judiciary Committee, Senate Bill 81, March 21, 1983. Attachment 2, Section2 (Emphasis
added). Testimony of Jerry Slaughter.
42 Minutes, House Judiciary Committee, Senate Bill 81, March 28, 1983
43 State v. Shaffer, 223 Kan. 244, 250 (1977).

Mr. Daniel W. Peters
Page 10
defined. 44 	The Court reiterated that the question of whether the medical standards
required had been met was a question of fact to be determined from the evidence.45
Thus, we conclude that the question of whether “accepted medical standards” permit a
physician to delegate the determination of cardiovascular death to a PA or APRN is one
of fact. 	Accordingly, we decline to opine on whether a PA or APRN can make a
determination of cardiovascular death “in accordance with accepted medical standards.”
In summary, we conclude that a physician licensed by the Kansas State Board of Healing
Arts to practice medicine and surgery may delegate acts which would constitute the
practice of healing arts to (1) a person licensed by the Kansas State Board of Healing
Arts as a physician assistant pursuant to a detailed plan of care with the physician or (2)
a person licensed by the Kansas State Board of Nursing as an advanced practice
registered nurse in the role of clinical nurse specialist or nurse practitioner pursuant to a
collaborative practice agreement with the physician. 	No statutes or regulations limit or
prohibit such delegation for the determination of cardiopulmonary death. 	However,
whether a PA or an APRN practicing as a clinical nurse specialist or nurse practitioner
can make a determination of cardiopulmonary death “in accordance with accepted
medical standards” is a question of fact and, as such, is outside the scope of this opinion.
Sincerely,
Derek Schmidt
Kansas Attorney General
Janet L. Arndt
Assistant Attorney General
DS:AA:JLA:sb
44 State v. Shaffer, 229 Kan. 310, 317-19 (1981).
45 Id. at 319.