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Analysis of BORN Proposed Regulations
MNA ANALYSIS
BORN Proposed Regulations
244 CMR 7.00 Action and Complaints
Overview
Language "within the quotations" is the actual
language from the Board Proposed Regulations.
The following analysis contains several recommendations,
which are designed to ensure that the final regulations protect
licensee’s due process rights. The recommendations request
final regulations, which specifically outline:
- receipt of a statement of allegations;
- clear computations of time;
- reasonable time frames; and
- complete and timely notice.
7.03 Non- Disciplinary Actions
- Informal Reprimand: "The
Board may issue an informal reprimand which constitutes
a written statement to the licensed nurse of the Board’s
disapproval of the nurse’s conduct and serves to put the
nurse on notice that the conduct complained of concerns
the Board. An informal reprimand does not constitute disciplinary
action."
Issue: Nurses are unaware of what actions
on complaint are reported to the National Data Bank
MNA Recommendation: Add after "action", " nor is
it reported to any National Data Bank".
7.04 Disciplinary Actions
"…Where the Board initiates an adjudicatory proceeding,
the Board shall conduct such proceeding in accordance with
M.G.L. c. 30A, ss. 10, 11, and 12, and the Standard Adjudicatory
Rules of Practice and Procedure at 801 CMR 1.01 et seq."
Issue: The narrative descriptor does not adequately
inform nurse licensees of their legal rights. The Board, if
it chose to, could clearly outline a licensee’s rights listed
at M.G.L. c. 30A, including section 11(7).
MNA Recommendation: After "adjudicatory proceeding,"
insert the words "a statement of allegations shall be provided
to the licensee and an opportunity to answer shall be afforded."
Next sentence to start with capital "The Board…". Last
sentence to read: "Unless a licensee makes written request
in advance for tentative or proposed decisions of a presiding
officer, the Board is not bound to provide a copy, nor to
provide the opportunity for a licensee to file objections
and present argument to a majority of the Board officials
who are rendering a final decision.
7.05: Summary Suspension of License, APN Authorization
or Right to Renew License
- (1) Basis for Summary Suspension Order:
" The Board, without a hearing, may suspend a nursing license
or APN authorization, or both, or refuse to renew a nursing
license, upon a vote that a licensed nurse’s continued practice
presents an immediate and serious threat to the public health,
safety or welfare warranting such summary action, provided
the Board provides an opportunity for a hearing in accordance
with M.G.L. c. 30A and 801 CMR 1.01 et seq. on the necessity
for the summary action within seven days after the suspension."
Issue: The vote required for an order
for Summary Suspension in this definition, does not require
that a significant membership of the Board even be present.
Under the Constitution, when government (Board) takes property
(license to practice nursing) it must do so by a 2/3-majority
vote. Given the serious nature of this action by the Board and
the licensee’s due process rights, MNA believes a 2/3-majority
vote of the Board is needed to take such action.
MNA Recommendation: Wherever reference is made to
the necessity for a Board vote under 244 CMR 7.05(1)-(2),
insert the words "by 2/3 majority" before the word
"vote".
- (2)(b) Standard for Determining Immediate
and Serious Threat: "In determining that a licensed nurse’s
continued nursing practice presents an immediate and serious
threat to the public health, safety or welfare, the criteria
the Board may consider include, but are not limited to:
- whether the nurse’s practice is impaired
by substance abuse which prevents the nurse from engaging
in the safe and proper practice of nursing;
- whether the nurse’s ability to engage
in the safe and proper practice of nursing is impaired
by mental or physical condition, or both;
- whether the nurse has engaged in
criminal activity;
- the existence of actual or potential
patient harm, or both;
- The existence of actual or potential
harm to others, or both."
Issue: The broad discretion left to the
Board in defining "immediate and serious threat" is problematic.
The nature of summary suspension demands that the Board has
diligently pursued an accumulation of clear evidence to support
the allegation as credible, and their action as warranted, to
"protect the public’s health, safety and welfare". Therefore,
these regulations must delineate actual danger from a potential
threat. If based upon a complaint and affidavit, the Board determines
that a licensee is a serious danger to the public health safety
or welfare, only then should the Board issue a summary suspension
order.
MNA Recommendation: Eliminate (2)(b) title, text and
bullets. Insert, the words, "a clear, serious and immediate
danger" wherever the words "an immediate and serious threat"
appear at 244 CMR 7.05(1)-(2). At (2)(a) Vote for Summary
Suspension: Add second sentence: "If there exists a serious
threat to the public health, safety or welfare, the Board,
before taking any vote to summarily suspend, shall order the
licensee to file opposing affidavits or other evidence within
three business days. Change (2)(c) to (2)(b).
- (2)(c) Order of Suspension: "Where
the Board has voted that a licensed nurse’s continued practice
presents an immediate and serious threat to the public health,
safety or welfare, the Board shall issue to the nurse a
written order of suspension…"
Issue: Nothing in this proposed regulation
states that the suspension order is pending a final adjudicatory
hearing on the merits (credibility) of the complaint. As written,
the language suggests that if you fail to request a hearing
within seven days, you lose your right to any adjudicatory hearing.
MNA Recommendation: After this sentence, add a sentence
to read: "Such order shall inform the licensee of the statement
of allegations against him/her and that a final hearing on
the merits of those allegations is pending.
- (2)(c) Order of Suspension: "…If requested,
such hearing shall be held within seven days of issuance
of the suspension order."…
Issue: How does one know when the clock
starts ticking? What is considered the act of issuing? Is it
the date on the order, the date received or date according to
some rule under 801 CMR 1.01 (3 days after postmarked)?
MNA Recommendation: The licensee’s request for a hearing
must be completed within seven days of the issuance of
a summary suspension order. Although the regulations generally
reference Chapter 30A and 801 CMR 1.01, it is unclear how
the Board is computing the start of the 7-day time frame.
The regulation must clearly identify the start of this 7-day
period.
Issue: Within this time frame, how does a nurse licensee
identify the procedure for requesting such a hearing? Under
the law, a phone call is not enough.
MNA Recommendation: Enclosed with the summary suspension
order there ought to be a clear written guide as to the process
for claiming an adjudicatory hearing per 801 CMR 1.101.
- (2)(c) Order of Suspension: "…The Board
shall send such summary suspension order to the licensed
nurse by certified mail at his or her address of record
or may deliver such order to the nurse by hand."
Issue: Certified mail is no guarantee
of receipt of the "order to show cause". Given the seriousness
of this Board action and a licensee’s limited time to respond
it is incumbent on the Board to make a reasonable first attempt
at "in hand" (personal) delivery of such orders.
MNA Recommendation: Change this sentence to read:
"The Board shall first make a reasonable attempt to deliver
any summary suspension order to the nurse by hand before sending
such order by certified mail at his or her address of record.
(2)(c) Order of Suspension: "…Upon receipt of the order,
the nurse shall immediately cease all nursing practice and
surrender his or her nursing license,…"
Issue: At 244 CMR 7.04 the proposed definition of
"surrender" states that surrender "is the equivalent to the
revocation of such license,..". It is unclear whether this
means that the lifting of suspension would require that you
sit again for the licensure examination. If the Board is using
this term to suggest that the nurse must deliver their license
to them, it should not use the same term differently within
its own regulations.
MNA Recommendation: Remove the word "surrender" and
insert the word "deliver".
- (2)(d) Hearing on Necessity for Summary
Suspension: "Where a licensed nurse makes written request
for an adjudicatory hearing on the necessity for the summary
suspension, the Board shall promptly notify the nurse in
writing at his or her address of record of the date, time,
and place of the hearing…"
Issue: As written, this regulation presents
unreasonable time frames. There is no assuredness that the licensee
will even receive written notice from the Board of their requested
adjudicatory hearing, before it occurs.
MNA Recommendation: Remove the words, "in writing
at his or her address of record" and insert the words,
"by in hand delivery"…
- (2)(d) Hearing on Necessity for Summary
Suspension: "…Where the Board votes to continue the summary
suspension order in effect, such order shall be in effect
until the adjudication of the merits of the complaint, including
judicial review thereof, or until other final disposition
of the complaint by the Board. "
Issue: This language leaves the potential
for a lengthy investigatory process, which could be extremely
financially burdensome to a suspended licensee. These types
of cases should be regarded a priority of the Board and timely
resolution achieved. Also, there should be an opportunity for
such licensees to go before the Board and demonstrate that they
no longer present a clear, serious and immediate danger warranting
suspension of their license.
MNA Recommendation: Remove the word "shall" and insert
the word "may". Add two new sentences after this sentence
to read: "Where a licensee can present clear and convincing
evidence to the Board that they no longer pose a clear, serious
and immediate danger, the Board may vote to stay (put on hold)
a license suspension pending final disposition of the complaint.
The Board shall make final adjudication on the merits of the
complaint within 60 days.
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