Initial Legal Analysis of newly promulagated BORN Regulaitons, Nov 2000

This is an initial legal analysis of the newly promulgated regulations of the Board of Registration in Nursing.  The MNA BORN Reform Task Force will be meeting in January to conduct a more extensive review of the document and will post a more detailed analysis at that time.

244 CMR 7.00 Disciplinary Actions:  Despite repeated arguments by MNA regarding the BORN’s lack of statutory authority to promulgate summary suspension regulations, the final regulations do include a process for the summary suspension of a license.
 
The July 2000 version of the regulations had incorporated the majority of MNA’s recommendations in relation to providing  “due process protections” for the licensee in the event of summary suspension of a nurse’s license.  For example, the MNA requested that any order, issued by the BORN to a nurse to cease all nursing practice, be voted upon by a majority of the Board; that a reasonable attempt at in-hand delivery of such order be made and that a statement of the allegations against the nurse be included in the order were critical pieces missing from initial drafts that are now included in the process.  However, one draft required the nurse must request a hearing before the Board within seven days or risk losing that opportunity and also outlined a standard for deciding whether  to summarily suspend a license based on the threat of immediate and serious harm or the potential threat of immediate and serious harm.  MNA requested that the nurse be given three days from date of receiving the order to respond to the Board’s concerns and that the standard for deciding to summarily suspend a license be conditioned on a nurse who posed a clear and present danger.  Neither of these recommendations were taken by the Board.  Instead, the final regulations mirror the Board of Registration in Medicine summary suspension regulations that a licensee shall be given a hearing within seven days, unless licensee requests another date which the Board may consider, and the Board issues summary suspension orders only upon documented evidence that the nurse poses an immediate and serious threat.  Apart from the belief that the BORN does not have this legal authority, the one remaining serious concern is that the Board has still not indicated in the final regulations any date certain, by which the licensee will have final resolution of such a serious complaint that has effectively suspended their nursing practice.

Regarding non-disciplinary actions, the Board outlined a process for admitting nurses into SARP and “deferring” disciplinary action rather than “dismissing” disciplinary action pending successful completion of the program.  MNA pointed out that “defer” means discipline will take place at some time, and the Board should “dismiss” someone who completes the SARP program.  This change has been made by the Board.

Within this same chapter of the regulations, there are two outstanding issues, however.  The definition of  “Agreement” still does not require that the terms entered into by the Board and the nurse in resolution of a complaint be verified by the nurse’s signature.  The risk here is that a nurse may appear before the board without counsel and verbally agree to something described by the Board and that will later appear in writing.  Second, MNA had requested that complaints submitted to the Board be in writing to verify their authenticity.  The definition of  “complaint” does not require it be in writing.

244 CMR 9.00 Standards of Conduct:  This chapter was previously written to replace the old 244 CMR 2.00. Rather than risk confusion over which 2.00 language was being referred to, the Board has chosen to place the new standards of conduct in an entirely new chapter, 9.00 and remove the old 2.00, leaving 2.00 now blank. 

Definitions:

Despite MNA’s rationale as to why the definition of  “abandon” needs to clearly state that refusal of Mandatory overtime does not constitute “abandon” of a patient, the Board has refused to adopt the California definition of  “abandon” as requested.  Instead, the Board indicated it may draft a policy statement explaining they do not consider the refusal of mandatory overtime as grounds for disciplinary action.  Upon promulgation of the final regulations, the Board had not completed the package of policy statements they were designing to accompany these regulations.  BORN legal counsel indicated they would be available on the BORN website soon.

The last draft included a definition of  “competency” that was problematic.  The definition deemed competence as “safe and effective” nursing care.  MNA pointed out that many times nursing interventions may be competently carried out, but that the patient response may not necessarily demonstrate success or “effectiveness”.  The Board has taken this criticism and changed the definition to require practice consistent with accepted standards of nursing practice, which is better. 

No change has been made to the definition of  “impaired” which is problematic. 

The definition of  “neglect” was problematic in that it did not match current legal definitions elsewhere in the Mass. General Laws and is now worse, because it removes the word “resident” from the definition of who may be neglected by a licensee and limits it to “patients”.  The risk of neglect is probably highest for nursing home “residents” than for acute “patients” and nurses treat both.

Definition of the “practice of nursing” included the phrase “voluntary employment” which was inconsistent.  You can’t be a volunteer nurse who is employed.  Board has changed this to “voluntary position”.  Still, the problem persists that the nurse practice act specifically excludes “volunteer service” from the definition of  nursing practice and the Board has ignored this.

MNA had requested the Board definition of  “Substance abuse” be taken out as it requires a diagnosis be made.  The final regulations still include this definition.
 

Standards of Conduct:  MNA offered several recommendations under this section.  For example, the safeguard of  “patient confidential information” was only in relation to individuals and not “entities” as well.  This addition was made by the Board as requested.  Additional technical changes were made as requested.  For instance, removal of the word “effective” from the standard on “documentation of controlled substances”.

There were four major areas of concern, however, under the standards.  MNA had requested that the Board re-insert a standard regarding “Assessment” as it is a fundamental nursing practice.  The Board has not included it in the final regulations.

MNA believed the Board previous provision regarding “Duty to Safeguard the Patient” was likewise, a standard of conduct inherent to nursing practice and our code of ethics.  The Board did not include this standard advocacy role in the final regulations.

A completely new expectation of licensees under the standards is the “Mandatory Reporting”.  MNA articulated concern that this process would not achieve the result sought by the Board because of lack of confidentiality for  the reporting nurse and lack of immunity for doing so.  The final regulation has a different title, “Duty to report to the Board”, but same content.  The Board has indicated it will provide a policy statement on how to comply with this section that will state it does not expect nurses to be held liable under this standard for any erroneous reporting.  This standard is extremely problematic and should not have been promulgated at this time, without the protections enunciated by MNA.

Lastly, the Board’s July 2000 version of the standard of conduct for the “Responsibilities of Nurse in Management Role” was extremely problematic because it reduced the nurse manager’s accountability to making “reasonable efforts to ensure the safe and effective practice of nursing in all practice settings within the nurse’s management authority”.  MNA pointed out that this standard was weak and unacceptable.  The Board has re-drafted the final regulation to require that the nurse manager be accountable to “adhere to accepted standards for that role”.  This is improved because it eliminates the subjective nature of  what is “reasonable” and also removes any maneuvering that in fact, a job description either provides or does not provide them with authority to address certain matters within their responsibility for that role.   Accepted standards for a manager role are national standards and are objective in nature.