By Elisabeth J. Beardsley
STATE HOUSE NEWS SERVICE
May 11, 2000
www.statehousenews.com

STATE HOUSE, BOSTON, MAY 11, 2000……Attempts by regulators to update and expand the state's 14-year-old nursing disciplinary code brought dozens of nurses to the State House today to protest that they are being denied due process and that regulators are "overreaching" their authority.

The Board of Registration in Nursing (BORN) has proposed new regulations that primarily codify existing disciplinary practices, while adding two controversial new provisions. The first, called "summary suspension," allows the board to immediately – without a prior hearing – suspend a nurse's license when the board judges that the nurse's conduct presents an immediate danger to patients.

The second disputed proposal would require "mandatory reporting" among nurses who directly observe their colleagues abusing patients, practicing under the influence of drugs or alcohol, or diverting controlled substances in the workplace.
The board first promulgated the new regs last summer and vetted them through three public hearings in September. Nurses were still dissatisfied, so the regs were substantially re-written at a board meeting last night. A current version of the proposed regs will not be available until next week at the earliest.

At a Government Regulations Committee oversight hearing today, Massachusetts Nurses Association President Karen Daley called the proposed regs "overreaching and ambiguous," and said the board lacks statutory authority to do summary suspensions. She added that the board can't handle its existing workload, much less an increase expected to result from the regs.

"I am asking you to allow us another public comment period so this document and its words are as unambiguous as possible, so that the authority assumed by the BORN is consistent with statute, so that due process and the livelihood of good, competent, dedicated nurses is protected and so the health and safety of patients is truly served," Daley said.

Dava Feltch, a Boston attorney who specializes in health care law, said a professional license is a "property interest" that cannot be taken away without due process. She said the board's proposal of a hearing within seven days of summary suspension is unacceptable. "The board is not empowered, either expressly or implicitly, by any statute, regulation or precedent," Feltch said.

The board argues that it has the power of summary suspension as a result of a 1987 Supreme Judicial Court case that gave that power to the Board of Registration in Medicine to protect the "public health, safety and welfare." The Division of Registration has already applied the SJC decision to the boards of registration in pharmacy and dentistry, whose licensees did not protest.
"The development of public policy is always a balancing between public rights and private rights," said Michael Brooks, general counsel and deputy director for enforcement for the Division of Registration.

In light of the nurses' strike at St. Vincent's Hospital in Worcester, many of the nurses – and lawmakers – at today's hearing were concerned about proposed regulatory language that makes "patient abandonment" grounds for summary suspension. The regs define abandonment as leaving a patient unattended without "reasonable notice."

Secretary of State William Galvin said the main sticking point in the Worcester strike negotiations is whether nurses should be subject to mandatory overtime. Galvin said that under the board's proposed regs, a nurse who refused to work mandatory overtime could be exposed to a charge of "abandonment" and therefore summary suspension – a "very significant sanction," Galvin said.

"My concern is that the language be clearly indicative to not include the refusal of mandatory overtime in the suspension of nurses," Galvin said. "Very definitely, this is a test case for Massachusetts and the rest of the country."

BORN Executive Director Theresa Bonanno said the intent of the "abandonment" clause is to make sure that patients, especially in nursing homes and smaller facilities, are not left alone if one shift of nurses leaves and the next shift fails to show up. "The intent is the exact opposite of the effect because the nurses, I guess, are asked to do this (mandatory overtime) and they're very sensitive about it," she said.

Committee co-chairman Sen. Michael Morrissey (D-Quincy) prodded board members to add language giving some "weight" to nurses who have completed their scheduled shifts. "We don't want to encourage patient abandonment," he said. "We also don't want to hold nurses hostage."

Health Care Committee Co-chairman Rep. Harriette Chandler (D-Worcester), who attended the hearing, told board members that if staffing is the problem, then more responsibility should be placed on the employer. "There is an abandonment issue on the part of the hospital that does not staff properly and puts the nurses in this position," she said.

The proposed mandatory reporting regulation caused enough of a stir, particularly among therapists who work with nurses who have substance abuse problems, that the board last night made changes to afford some privacy protections. Jan Kauffman, a registered nurse for 28 years and the director of a substance abuse treatment program, said recovery would be impossible if nurses feared being reported. She added that prior to the revisions, it was unclear whether she would be required to report her clients.

"If nurses cannot in a safe way talk about the slips and relapses without fear of being reported, without fear of further sanctions, then the nurses will actually be pushed underground," Kauffman said.

Galvin, whose office manages the public airing of all regulations, added that because the board has substantially revised the proposal, "these regulations need to be completely aired again." The board last night voted to open another two-week comment period. The committee today demanded –and the board agreed – to a 30-day period with the possibility of another hearing.