| Proposed Regulation |
July 1999 Version |
July 2000 Version |
Recommendations |
| 7.00 Action and Complaints |
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| 7.01 Purpose |
"244 CMR 7.00 sets forth the actions the
Board may take on a complaint against a nurse filed with the
Board." |
Same |
|
| 7.02 Definitions |
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|
| * Address of Record |
Omitted |
Address of Record
Moved from old 2.00 and changed |
See Address of Record definition above.. |
| Adjudicatory Hearing |
"Adjudicatory hearing means an administrative
hearing held by the Board after investigation to determine the
truth and validity of the allegations contained in a
complaint filed against a licensed nurse. The hearing is held
in accordance with the State Administrative Procedure Act, M.G.L.
c. 30A, and the Standard
Rules of Adjudicatory Practice and Procedure at 801 CMR
1.01 et seq." |
"Adjudicatory hearing means an administrative
hearing held by the Board after investigation to determine the
truth and validity of the allegations contained in a complaint
filed against a nurse licensed by the Board. The hearing is
held in accordance with the State Administrative Procedure Act,
M.G.L. c. 30A, and the Standard Rules of Adjudicatory Practice
and Procedure at 801 CMR 1.01 et seq."
|
Grammatical Changes |
| Advanced Practice Nurse |
"Advanced Practice Nurse (APN) means a Registered
Nurse to whom the Board has granted written authorization, under
authority of M.G.L. c. 112, s.80B, to engage in advanced practice
nursing as defined in 244 CMR 4.00." |
Same |
|
| *Advanced Practice Nursing |
Omitted |
New Title: Advanced Practice Nursing
"Advanced practice nursing means professional nursing activity
engaged in by a Registered Nurse in accordance with 244 CMR
4.00." |
Okay |
| *Agreement |
Omitted |
Moved Title from Old 2.00 to New 7.00
Agreement
"Agreement means a legally binding document reflecting the
agreement, including specified terms and conditions, entered
into by a nurse licensed by the Board and the Board in resolution
of any complaint against such nurse." |
Definition does belong under 7.00 Actions and
Complaints not 2.00 Standards of Conduct. See Recommendation
above on definition of "Agreement". Must include signature
of licensee on the document to show there was a meeting of the
minds with the Board as to terms and conditions entered into. |
| APN Authorization |
"APN authorization means the written authorization
to engage in advanced practice nursing granted by the Board
to a Registered Nurse in accordance with 244 CMR 4.00.." |
"APN authorization means the written authorization
granted by the Board to a Registered Nurse in accordance with
244 CMR 4.00 to engage in advanced
practice nursing." |
Grammatical Changes |
| *Complaint |
"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." |
"Complaint means a communication to, or other
information obtained by, the
Board alleging that a nurse has engaged in conduct related
to the practice of nursing that violates any law or regulation,
or both, related to such practice." |
Grammatical Changes made. See Recommendation
made for same definition above at 2.00. Need to be made
in writing for authenticity. |
| *Final Decision and Order |
Omitted |
"Final decision and order means the written
findings of fact, conclusions of law, and order of sanction
or other disposition issued by the Board to a nurse licensed
by the Board following the final adjudication of any complaint." |
Okay |
| M.G.L. |
"M.G.L. means Massachusetts General Laws." |
Same |
|
| *Licensed Nurse |
"Licensed nurse means a nurse to whom the Board
has issued a valid
Registered Nurse (RN) or Licensed Practical Nurse (LPN) license,
or both." |
Three New Titles used instead:
Licensed Practical Nurse (LPN):
"Licensed Practical Nurse (LPN) means a nurse who meets the
criteria for licensure under M.G.L. c. 112, s. 74A and
244 CMR 8.00 and who holds a valid license to engage in the
practice of nursing as a Licensed Practical Nurse."
Nurse Licensed by the Board: "Nurse licensed by the
Board means a nurse to whom the Board has at any time
issued a license to engage in the practice of nursing as a
Registered Nurse
or Licensed Practical Nurse, or both, whether or not such
license is expired, surrendered, suspended or revoked."
Registered Nurse(RN):
"Registered Nurse (RN) means a nurse who meets the criteria
for licensure under M.G.L. c. 112, s. 74 and 244 CMR
8.00 and who holds a valid license to engage in the
practice of nursing as a Registered Nurse." |
|
| *Order to Show Cause |
"Order to Show Cause means a document served
by the Board on a licensed nurse containing allegations
that the nurse has engaged in conduct in violation of
Board law(s) or regulation(s), or both. The Order to Show
Cause may also order the nurse to appear at an adjudicatory
hearing before the Board to "show cause" why the Board
should not take disciplinary action against the nurse's
license. See 801 CMR 1.01(6)(a)." |
"Order to Show Cause means a document issued
by the Board to a nurse licensed by the Board containing
allegations that the nurse has engaged in
conduct that violates any law or regulation, or both, related
to the practice of nursing. The Order to Show Cause may also
order the nurse to appear at an
adjudicatory hearing held by the Board to "show cause" why the
Board should
not take disciplinary action against the nurse's license or
APN authorization, or both, or the right to renew such license.
See 801 CMR 1.01(6)(a)." |
Grammatical Changes=Better. There are
no "Board law(s) but there are Massachusetts law(s). |
| *Practice of Nursing |
"Practice of nursing means the practice of
nursing as defined in M.G.L. c. 112, s. 80B and 244 CMR 3.00.
The practice of nursing includes, but is not limited to, seeking
and accepting paid or voluntary employment as a licensed nurse
or employment requiring that the applicant hold a current and
valid nursing license." |
"Practice of nursing means the practice of
nursing as defined in M.G.L. c. 112, s. 80B and 244 CMR 3.00.
The practice of nursing includes, but is not
limited to, the provision of a nursing service using telecommunications
technology by a nurse physically located outside Massachusetts
to a person physically located within Massachusetts, seeking
and accepting paid or voluntary employment as a Registered
Nurse or Licensed Practical Nurse, or employment requiring that
the applicant hold a valid license." |
Dramatically Different and Worse:
See recommendation above made for same definition for
"Practice of Nursing" |
| *Substance Abuse |
"Substance abuse means a dysfunctional pattern
of human response characterized by excessive, inappropriate
or unhealthy use of chemical
substances including alcohol, drugs, or both." |
Same |
No Change Made. Still problematic.
See recommendation above for definition of "Substance
Abuse". |
| Valid License |
Omitted |
"Valid license means a license to engage in
the practice of nursing in Massachusetts properly issued to
a nurse by the Board on the basis of truthful information related
to the qualifications for licensure as a Registered Nurse or
Licensed Practical Nurse and which license is not expired, surrendered,
suspended or revoked." |
See recommendation above for definition
of "Valid License" |
| 7.03 Non-Disciplinary Actions |
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| Dismissal |
"(1) Dismissal. The Board may dismiss a complaint
where it determines that:
(a) the Board lacks jurisdiction over the individual named
in the complaint;
(b) there is insufficient evidence to support the complaint;
(c) the conduct complained of does not warrant discipline;
or
(d) disciplinary action be deferred pending the licensed nurses'
admission into, and successful completion of, the Board's
Substance Abuse Rehabilitation Program (SARP) established
under authority of M.G.L. c. 112, s. 80F."
|
"(1) Dismissal. The Board may dismiss a complaint
where it determines that:
(a) the Board lacks jurisdiction over the person named in
the complaint;
(b) there is insufficient evidence to support the complaint;
(c) the conduct complained of does not warrant disciplinary
action; or
(d) disciplinary action should be deferred pending the admission
of a nurse who holds a valid license into the Board's Substance
Abuse Rehabilitation Program (SARP) established under
authority of M.G.L. c. 112, s. 80F, and the nurse's successful
completion of such program."
|
(d) is problematic because it suggests that
disciplinary action is only "deferred" until some later date,
not actually ever "dismissed".
Should read: "(d) the licensee has been admitted into
the Board's Substance Abuse Rehabillitation Program (SARP)
established under authority of M.G.L. c. 112, s 80F, and has
successfully completed such program.
|
| *Informal Reprimand |
"(2) 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." |
Omitted |
The term reprimand suggests the conduct complained
of must be reported to the National Practitioner's Data Bank.
Informal Reprimands not warranting Board disciplinary action
should not be conduct reported to this databank. Better
to omit so long as it does not lower the bar as to what
conduct the Board will now deem as requiring formal disciplinary
action. |
| 7.04 Disciplinary
Actions |
"The actions set forth in 244 CMR 7.04(1)-(6)
constitute disciplinary actions the Board may impose against
a nursing license or APN authorization, or both. The Board may
impose these disciplinary actions as part of a Final Decision
and Order issued in connection with the adjudication of
a complaint, or under the terms of a written agreement
entered into between a licensed nurse and the Board. 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.
Disciplinary actions are reportable by the Board to other licensing
entities and disciplinary data banks as disciplinary action
upon the nurse's license or APN authorization, or both." |
"The actions set forth in 244 CMR 7.04(1) -
(6) constitute disciplinary actions the Board may impose
on any license to engage in the practice of nursing in Massachusetts
or APN authorization, or both, or on the right to renew such
license. Except as provided by 244 CMR 7.05, the Board may only
impose disciplinary action as part of a final decision and order
issued in connection with the adjudication of a complaint, or
under the terms of an agreement entered into between a nurse
licensed by the Board and the Board in resolution of any complaint.
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. " |
Grammatical Changes
Carves out an explanation of different process used for summary
suspension action at 244 CMR 7.05.
Recommendation is to insert the words "a written, dated
and signed agreement" instead of the words
" an agreement".
|
| Formal Reprimand |
"The Board may issue a formal reprimand which
constitutes a written rebuke by the Board expressing strong
disapproval of a
licensed nurse's conduct. ‘ |
New Title: Reprimand:
"The Board may issue a reprimand in the form of a written statement
to a nurse licensed by the Board describing the manner in which
the nurse has failed to comply with any law or regulation,
or both, related to the practice of nursing." |
Now ties the reprimand letter to Board's disapproval
of nurse conduct "related to the practice of nursing" |
| Probation |
"The Board may issue a reprimand in the form
of a written statement to a nurse licensed by the Board describing
the manner in which the
nurse has failed to comply with any law or regulation,
or both, related to the practice of nursing." |
"Probation consists of a period of time during
which a nurse who
holds a valid license may continue to practice nursing
in Massachusetts under terms and conditions specified by the
Board. The nurse whose license is subject to probation must
comply with the terms and conditions in order to continue
to engage in the practice of nursing in Massachusetts." |
Grammatical Changes |
| Suspension |
"Suspension of a nursing license or APN authorization,
or both, is the temporary denial by the Board of a currently
licensed nurse's right
to practice nursing or advanced practice nursing, or both,
and to represent himself or herself as an "LPN", "RN"
or as an advanced practice nurse. Suspension of the right
to renew a nursing license is the temporary denial by the Board
of a nurse's right to renew his or her nursing license." |
"Suspension of any license to engage in the
practice of nursing
in Massachusetts or APN authorization, or both, is the temporary
denial by the Board of the right of a nurse who holds a valid
license or APN authorization, or both, to engage in the
practice of nursing in Massachusetts or to engage in advanced
practice nursing, or both, and to in any way represent himself
or herself by title or other designation as a Licensed
Practical Nurse or Registered
Nurse, or as authorized to engage in advanced practice
nursing, or both. Suspension of the right to renew any
license to engage in the practice of nursing in Massachusetts
is the temporary denial by the Board of the right of a nurse
licensed by the Board to renew such license." |
Now includes right to renew as something the
Board may suspend.
Clarified |
| Stayed Suspension |
"The Board may impose a period of suspension
on a nursing license or APN authorization, or both, which
the Board does not activate pending the licensed
nurse's compliance with specified conditions." |
"The Board may impose a period of suspension
on any license to practice nursing in Massachusetts or APN authorization,
or both, or the right to renew such license which suspension
the Board does not activate pending compliance by a nurse
licensed by the Board with specified terms and conditions." |
Now includes "right to renew" within its terms. |
| Surrender |
"The Board may, in resolution of a complaint,
request the surrender of a nursing license or APN authorization,
or both, or accept the unsolicited surrender of such license
or authorization, or both. The Board may also request
the surrender of a licensed nurse's right to renew a nursing
license
or accept the unsolicited surrender of such right. A nurse's
surrender of his or her license or APN authorization,
or both, is the equivalent to the revocation of such
license, authorization, or both, by the Board. " |
"The Board may request the surrender of any
license to practice nursing in Massachusetts or APN authorization,
or both, or accept the unsolicited surrender of such license
or authorization, or both. The Board may also request
the surrender of the right of a nurse licensed by the Board
to renew such license or accept the unsolicited surrender
of such right to renew. A nurse's surrender of any license
to engage in the practice of nursing in Massachusetts or APN
authorization, or both, terminates the nurse's right to
practice nursing in Massachusetts or such authorization, or
both, and to in any way represent himself or herself by
title or other designation as a Licensed Practical Nurse
or Registered Nurse, or as authorized to engage in advanced
practice nursing, or both. Surrender of the right to renew any
license to practice nursing in Massachusetts terminates
the nurse's right to renew such license." |
Now includes "right to renew" and given the
definition of "complaint" the old definition of "surrender"
limited the Board's ability to request surrender of a license
to those licenses pending resolution of complaints filed against
them in Massachusetts. New definition affords Board wider
latititude to request surrender of Massachusetts license if
nurse has licensure in more than one state and was sanctioned
in another state.
New distinction made between "surrender" and "revocation"
as it should be, since they are not one in the same. |
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| Revocation |
"The revocation by the Board of a nursing license
or APN authorization, or both, is the termination of the licensed
nurse's right to practice nursing or advanced practice
nursing, or both, and to represent himself or herself
as an "LPN", "RN" or Advanced Practice Nurse. Revocation of
the
right to renew a nursing license is the termination of the nurse's
right to renew his or her nursing license." |
"Revocation by the Board of any license to
engage in the
practice of nursing in Massachusetts or APN authorization,
or both, terminates
the nurse's right to practice nursing in Massachusetts
or such authorization, or both, and to in any way represent
himself or herself by title or other designation as a
Licensed Practical Nurse or Registered Nurse, or as authorized
to engage
in advanced practice nursing, or both. Revocation of
the right to renew any license to practice nursing in Massachusetts
terminates the nurse's right to renew such license." |
Grammatical Changes |
| 7.05 Summary of Suspension
of License, APN Authorization or Right to Renew License |
|
|
Board does not have the express statutory
authority to promulgate this section, nor does the Board have
adequate resources and skill to administer this authority.
Recommendation is to remove until issue has been discussed
before the Special Commission on Nursing.
Analysis of section: Section is dramatically different.
Please read both old and new sections through entirely.
Summary follows in "issue identified" and "how changed" format. |
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| Issue |
July 1999 |
June 2000 |
Comments |
| On Due Process Hearings |
Without a hearing Board Acts to suspend nurse |
Pending a hearing, Board Acts to suspend nurse |
|
| On the Vote |
Board acts upon a vote |
Majority of full Board must vote to act. |
|
| Voting for summary suspension
when? |
Board "may" vote on whether the "continued"
practice presents an immediate and serious threat... |
Board "shall" vote on whethr the "continued
or further" practice of nursing presents an immediate
and serious threat… |
According to the new proposed regulation, the
board can no longer pick and choose which licensees are going
to be subject to this type of vote. Ability to summarily
suspend now extends to licensee's right to renew the license. |
| Whether or not licensee
has to successfully request a hearing within sevendays from
issuance of order. |
No guarantee licensee gets hearing |
Licensee guaranteed hearing within 7 calendar
days with option to request hearing at later date |
The Board "may" reschedule the hearing as requested
by licensee.
Should be "shall".
|
| Licensee must request
hearing within seven day sof "issuance" of order |
No way specified for licensee to determine
"issuance" and compute the running of time seven days |
Date of hearing will be automatically scheduled
by Board and date, time and place of the adjudicatory
hearing. set. |
|
| Standard for Determining
Immediate and Serious Threat |
Standard includes actual and potential harm.
Criteria used are horrible. Very subjective and broad. |
Standard no longer includes potential harm.
Board can no longer decide when they "may" use this criteria
or not. Board "shall" use this criteria for all licensee.
Criteria still horrible. |
Recommendation: Omit Criteria, then
at (1) Vote for Summary Suspension: Substitute the 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. Eliminate (2)
Standard for Determining Immediate and Serious Threat and change
(3) to (2), (4) to (3) and (5) to (4). Then, insert
the words, "a clear, serious and immediate danger" wherever
the words "an immediate and serious threat" appear at
244 CMR 7.05(1)-(4). |
| Order of Summary Suspension |
Written order does not explain the nature of
the allegations against the nurse. |
Written order shall specify the Board's findings
and reasons for the suspension. Inclusion of this written
information from the Board guarantees that any hearing conducted
is an "adjudicatory hearing' where the formal rules of procedure
must be followed by the Board. |
Now guarantees that formal rules of procedure
shall be followed by Board at the hearing. |
| How will licensee receive
notice of Summary Suspension Order and Hearing? |
Order to suspend practice may be sent either
by certified mail or hand delivered. Hearing must be requested
by licensee. |
Order to suspend practice shall be sent first
class mail and certified mail. Board will use all reasonable
efforts to provide such notice to nurse by hand delivery.
Notice of hearing date, time and place included in the
order. |
Board discretion at to whether or not to attempt
"in hand" delivery is eliminated. Case law will now dictate
whether Board has made a reasonable attempt at "in hand"
delivery. |
| What happens to the nurse's
license upon receiving the order? |
Nurse must cease all nursing practice and "surrender"
license to the Board
Note: Board's definition of "surrender "is that this is equivalent
to revocation / termination. |
Nurse must cease all nursing practice
and within one business day of receipt of order, deliver the
license to the Board. |
|
| What happens at the hearing? |
Could be just informal hearing where Board
states they need more information and time to investigate whether
the suspension ought to continue in effect. |
Hearing will be an adjudicatory hearing where
oral and documentary evidence can be presented as to whether
or not the suspension shall continue in effect.
Will need a majority vote of full Board to continue the suspension
in effect. This vote must take place within one business
day following the adjudicatory hearing and Board shall then,
within two business days, notify the nurse of its decision. |
|
| How long will the process
take before lifting the suspension and resolving the complaint? |
No commitment that the Board will move expediently
to host a formal adjudicatory hearing to decide on the necessity
of continuing the suspension in effect.
No commitment to move expediently to investigate a complaint
of this serious nature to render a final disposition in a
timely manner. |
Except where it has been rescheduled at the
nurse's request or waived by the nurse, if the adjudicatory
hearing on the necessity for summary suspension is not held
within seven days of the issuance of the order, the nurse's
license to practice shall be deemed re-instated.
Still no commitment to move expediently in final disposition
of such a complaint. |
Board must make a firm acknowledgment
in its procedures, that complaints of such a serious nature
will take priority, be handled expediently and resolved in an
timely and efficient manner. |
