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Analysis of BORN Proposed Regulations
MNA Analysis
BORN Proposed Regulations
244CMR 2.00
Overview
The following analysis contains several components:
- The proposed regulation language
- Issue with the proposed regulation
- MNA recommendation
Language "within the quotations" is the actual
language from the Board Proposed Regulations
2.00 STANDARDS OF CONDUCT:
2.02 Definitions:
- Complaint: "means a communication to,
or other information obtained by, the Board alleging that
a licensed nurse has engaged in conduct in violation of
Board law(s) or regulation(s), or both."
Issue: Definition includes any
communication to the Board, whether a written document or not.
If not submitted in writing, what authenticity and reliability
protections are afforded to the nurse for whom a complaint has
been filed?
MNA Recommendation: Board should ensure licensees
some procedural protections by requesting that all complaints
be at least in writing, signed and filed with the Board.
- Impairment: "A licensed nurse shall
not practice nursing while impaired."
Issue: This is not a diagnostic or standard
definition of impairment. This definition is open to a subjective
and non-expert assessment of behavior witnessed by others.
MNA Recommendation: Utilize the DSM 4 clinical diagnosis
definition of impairment.
- Standards of Nursing Practice: "means
authoritative statements that describe a level of care or
performance common to the profession of nursing by which
the quality of nursing practice can be judged."
Issue: This definition negates the authoritative
weight of standards promulgated by the profession nationally,
by which the quality of nursing practice, service or education
can be judged.
MNA recommendation: Add promulgated by the profession
after "statements"; insert, service or education
after "practice,".
2.03 Standards of Conduct for Nurses
- (4) Practice of Telenursing in Another
Jurisdiction:– "A nurse licensed by the Board who, while
physically located in Massachusetts, practices nursing in
another state or jurisdiction using telecommunications technology
modalities, shall also be governed by the licensure and
practice laws and regulation of the state or jurisdiction
in which he or she practices nursing using such modalities."
Issue: This definition assumes, for all
states, what their definition of practicing nursing is. The
Board’s authority only extends to nurses licensed in Massachusetts.
MNA recommendation: Redefine to reflect Massachusetts
Board’s sole authority, regulating those who are licensed
in Massachusetts. Replace the word "shall" with may
be.
- (9) Identification Badge: "A licensed
nurse who examines, observes or treats a patient or resident
in any practice setting shall wear an identification badge
which visibly discloses his or her name, licensure status
and, if applicable, advanced practice authorization."
Issue: The law requires under the Patient’s
Bill of Rights, that a nurse wear a name tag disclosing only
their first name. The law was drafted this way to protect
those nurse licensees who work in potentially violent health
care settings, for example, reproductive health clinics and
emergency departments.
MNA Recommendation: Insert first before
"name". This is consistent with the law at M.G.L. c. 111 §
70E.
- (14) Nursing Assessment: "A licensed
nurse with responsibility for direct patient care shall
systematically collect, verify and organize information
about a patient, evaluate the significance of the findings,
accurately and adequately record the information, communicate
significant information to the appropriate person(s), and
take appropriate nursing interventions as necessary or the
patient’s well-being."
Issue: This language does not accurately
reflect the critical nature of direct observation by the licensed
nurse in assessing patients. It does not recognize the importance
of observing the conditions, signs and symptoms of a patient.
MNA Recommendation: The regulatory language should
be clear, precise and consistent with
other regulations that outline the responsibilities of the
licensed nurse in relation to the direct care of patients.
(1) Direct observation by licensed nurses must remain a component
of "nursing assessment". (1) 244 CMR 3.02 "Responsibilities
and Functions-Registered Nurse", 244 CMR 3.04 "Responsibilities
and Functions-Licensed Practical Nurse",244 CMR 3.05 "Delegation
and Supervision of Selected Nursing Activities by Licensed Nurses
to Unlicensed Personnel" and M.G.L. c 112 s. 80B
- (18) Leaving a Nursing Assignment:
"When continued care is required, a licensed nurse who has
accepted responsibility for a nursing assignment or other
patient care shall leave such assignment only after properly
reporting all essential information to a designated individual.
Further, when continued care is required for the patient’s
condition, the nurse shall transfer responsibilities to
an appropriate caregiver."
Issue: This regulation needs to distinguish
between the concept of "Leaving a Nursing Assignment" by inappropriately
severing the nurse-patient relationship from the abuses such
as mandatory overtime, that are frequently experienced by licensed
nurses. This definition places ultimate responsibility on the
individual nurse to ensure that an "appropriate caregiver" is
available for continuing care. As written, this regulation mandates
the transfer of responsibilities only to another
"appropriate caregiver" and ignores both a time-related component
to nursing practice and current reimbursement policies that
may restrict or terminate care.
The limit of a nurse’s responsibility must be recognized
as contracted for a pre-designated period of time with an
employing person (for instance, a health care facility or
home care patient). Nurses have no control over staffing patterns
or reimbursement mechanisms.
MNA Recommendation: Suggest – Insert for a pre-designated
period of time before "shall". Add after "individual."
Refusal to accept an assignment or other patient cares
beyond the pre-designated period of time shall
not constitute leaving a nursing assignment. Insert after
"transfer responsibilities to", a person responsible for
securing ongoing care by others.
- (30) Mandatory Reporting of Nurses
to the Board: "A licensed nurse who has firsthand knowledge
of another nurse’s:
(a) abuse of a patient;
(b) practice of nursing while impaired by substance abuse;
(c) diversion of controlled substances shall report that
nurse to the Board in accordance with Board policy."
Issue: Patient abuse requires an immediate response
by the licensed nurse and the licensed facility. Nurses need
to follow operational guidelines that are required by institutional
settings that address patient abuse. Additionally, nurses
are already ethically, professional and legally obligated
to report these abuses. Facilities have a legal mandate to
report patient abuse. The Board should increase communications
with other government agencies to ensure that patient abuse
reporting occurs.
Section (b) and (c) potentially undermines the possibility
for early intervention and supportive outreach to nurses with
addiction or substance abuse problems. Mandatory reporting
of those who would disclose their addictions to a EAP program
or rehabilitation support group is very problematic. There
is a lack of a clear definition of who determines when a nurse
has substance abuse impairment for the purpose of mandatory
reporting.
MNA Recommendation: Delete this regulation
as written. The Board should consider a model analogous to
a "peer review committee" as an alternative to this issue.
Such alternative programs are already being used for medicine,
social work and psychology.
- (32) Action Against Certificate: "A
licensed nurse shall report to the Board in writing within
30 days any action against, or surrender of, his or her
certificate issued by a certifying body related to the practice
of nursing in connection with any investigation by such
certifying body."
Issue: According to the Nurse Practice
Act, M.G.L. c. 112 § 80B and 244 CMR 4.00 "Massachusetts
Regulations Governing the Practice of Nursing in the Expanded
Role" only nurses in the expanded role require current
certification by a nationally recognized accrediting body approved
by the BORN. The proposed language presumably seeks a method
to ensure current certification by those nurses authorized in
the expanded role but the language is confusing. Specialty certification
outside of nurses in the expanded role is voluntary and only
investigated by a certifying body if there is evidence of fraud.
The Board, in that case should expect to receive such a report
from the certifying body.
MNA Recommendation: Suggested language - Only those
licensed nurses required by law to maintain current certification
in their expanded role shall report to the Board in writing
within 30 days any action against or surrender of, his or
her certificate.
- (35) Falsification of Information:
"A licensed nurse shall not falsify, or attempt to falsify,
any documentation or information related to any aspect of
licensure as a nurse, the practice of nursing and the delivery
of nursing services."
Issue: The proposed regulation suggests
disciplinary action against a licensee for any false documentation
or information, absent the nurse’s knowledge of its falsity.
Proof of fraud, deceit or forgery requires an element of intent,
that is, knowing that deception exists.
MNA Recommendation: Insert knowingly
before "falsify".
- (39) Security of Controlled Substances:
"A licensed nurse shall maintain the security of controlled
substances, and of supplies and equipment used in the administration
of controlled substances, which are under his or her responsibility
and control."
Issue: There are systems in place within
facilities to maintain the security of controlled substances.
There are routinely no such systems in place for purposes of
maintaining the security of supplies and equipment used in the
administration of controlled substances. To expect that licensed
nurses assume this responsibility is unrealistic.
MNA Recommendation: Eliminate the phrase "of controlled
substances, which are under his or her responsibility and
control." Insert exclusively after "used" and
replace "the" with that; end sentence after
"administration".
- (42) Administration of Drugs: "In the
course of practice as a licensed nurse, a nurse shall not
provide or administer any prescription drug or non-prescription
drug to any person except as directed by an authorized prescriber."
Issue: Over the counter drugs are not
controlled substances regulated by the Controlled Substance
Act (Chapter 94C). Chapter 94C does not regulate nurses who
make available non-prescription medications for self-administration.
MNA Recommendation: Eliminate "provide or" and "or
non-prescription drug".
- (47) Delegation: "A licensed nurse,
in accordance with 244 CMR 3.05, shall only delegate nursing
activities to persons who are competent and qualified to
undertake and perform the delegated nursing activities.
A licensed nurse shall not delegate to non-licensed persons
nursing activities which require nursing assessment and
judgment during implementation."
Issue: This regulation must be consistent
with 244 CMR 3.05 in its entirety. Whether to delegate nursing
activities is a patient-specific professional judgment made
by the responsible licensed nurse. The licensed nurse must make
an initial assessment of the patient before delegating. Also,
there are additional criteria listed at 244 CMR 3.05 which limits
the act of delegating to non-licensed persons.
MNA Recommendation: A licensed nurse shall only delegate
nursing activities consistent with 244 CMR 3.05.
- (52) Responsibilities of Nurse in Management
Role: "A licensed nurse functioning in a management role
in any health care setting, or in any nursing education
program, shall ensure that:
(a) acceptable standards of nursing practice
are established and carried out so that safe and effective nursing
care is provided to patients;
(b) written nursing policies are readily available to
nursing staff;
(c) organizational policies and position descriptions
are not inconsistent with M.G.L. c. 112 §§ 74-81B,
Board regulations at 244 CMR 2.00-7.00, and to all federal
and other state laws and regulations related to the practice
of nursing;
(d) assigned nursing care staff is determined to be competent
to carry out the requirements of their jobs;
(e) reliable documentation of nursing licensure and advanced
practice authorization, where appropriate, is acquired before
the time of hire and is maintained throughout the course of
employment by: 1.
requiring the nurse to present his or her current nursing license
issued by the Board; or
2. verifying the validity of the license with the Board
either in writing, by telephone, or by Internet website check; (f)
the name and any other identifying information of a nurse is
immediately reported to the Board when the nurse:
1. has a license that shows evidence
of tampering or alteration;
2. has engaged in nursing practice with an expired nursing
license;
3. is unable to produce official and credible documentation
of current and valid licensure." Issue:
There is a need to distinguish between a nurse executive/manager
meeting the responsibilities listed here and the nurse who is
delegated to carry out the functions that normally fall within
the management role. Although the nurse executive/manager may
delegate these responsibilities, ultimate responsibility should
still clearly rest with that nurse whose authority and responsibility
for these activities is defined in a contract, written agreement,
job or position description.
MNA Recommendation: This regulation must distinguish
between the nurse hired as a nurse executive/manager versus
one who is delegated certain managerial activities. Delete
"functioning in a management role" and insert who is
hired as a Nurse Executive/Manager. Title of section
should read: "Responsibilities of Nurse Executive/Manager".
Issue: Requirements for nurse educators belong at
244 CMR 6.00 "Approval of Nursing Education Programs and the
General Conduct Thereof". Nurse educators can not assure allocation
of nursing management resources in a facility in which they
are guests and should not be held accountable for such responsibilities.
MNA Recommendation: Eliminate "or in any nurse education
program".
Issue (a): Individual nurse executives/managers do
not independently establish the standards of nursing practice
but adopt those standards while creating organizational policies
and procedures.
Recommendation: Change "establish" to adopt.
Issue (b): Nursing policies and procedures must be
readily available to staff.
MNA Recommendation: Organizational policies and
procedures must be included in both (b) and (c).
Issue (d): By referring broadly to "nursing care staff",
this language combines requirements for both nurse licensees
and unlicensed nursing staff. The responsibility of the nurse
manager/executive is both to determine nurse competence and
to ensure that written competencies for unlicensed assistive
personnel are available to licensees before delegation occurs.
At 244 CMR 3.05 delegation to an unlicensed assistive personnel
requires written competencies be filed before delegation can
occur.
In addition, there is a difference between being competent
as a licensed nurse in the job and competent for a specific
assignment. The regulation should distinguish between those
two elements. The issue of nurses "floating" to other units
and the required competence needed for a specific patient
assignment is relevant.
MNA Recommendation: (d) Should read: Nursing
care staff, both licensed and unlicensed is determined to
be competent to carry out their assignments. Written documentation
of unlicensed nursing staff competencies should be made available
to the delegating nurse. Delete "job" and add assignments.
- (53) Other Prohibitive Conduct: "A
licensed nurse shall not engage in any other conduct that
fails to conform to accepted standards of nursing practice
or behavior that has, or may have, an adverse effect upon
the health, safety, and welfare of the public."
Issue: The regulation leaves a subjective
interpretation of behavior, which potentially could "adversely
affect the public health safety and welfare". The subjectivity
of this language is problematic. By statute, "behavior" which
the Board may discipline a license is that which relates to
nursing practice and/or that which is criminal in nature. It
must not be open to discretionary interpretation. Such an example
might include an arrest for non-violent disturbing of the peace.
MNA Recommendation: Delete "that has, or may have,
an adverse effect upon" and insert therein that is a
danger to
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