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New policy on abandonment/mandatory overtime
BORN promulgates new disciplinary regulations
The Massachusetts Board of Registration in Nursing (BORN) has promulgated
new disciplinary regulations for nurses, including new “Standards
of Conduct” for which nurses will be held accountable by the agency.
The regulations, which were first made public in draft form in July
1999, have generated a firestorm of controversy within the nursing
community, resulting in strong opposition from nurses and nursing
organizations from throughout the Commonwealth.
The Massachusetts Nurses Association has played a pivotal role
in challenging these regulations and working to improve them to
ensure fairness and equity in their application for nurses in practice.
The MNA had formed a task force to review, analyze and recommend
changes to the regulations since they were first introduced. And
last year, the MNA embarked on a comprehensive “BORN Reform Campaign,”
involving nurses and nursing advocates committed to pressuring the
BORN to be more equitable in its dealings with nurses, and to ensure
the BORN holds all nurses – staff nurses as well as nursing administrators
– equally accountable. While not all MNA changes have been incorporated
in this document, many were. This article will provide background
on the regulations, as well as highlight key areas of interest and
concerns to the MNA.
All MNA members are encouraged to review the new regulations as
they have a direct impact on the BORN’s expectations for licensed
nurses in the state. Nurses can view the new regulations by visiting
the “Rules and Regulations” page of the BORN web site at: www.state.ma.us/reg/boards/rn/rule_reg.htm
Background on proposed regs
As originally drafted, the “Standards of Conduct for Nursing Practice”
and “Disciplinary Actions” comprised more than 21 pages of controversial
standards never before written into the BORN regulations. The proposed
Standards of Conduct included provisions of deep concern to nurses,
specifically language that provided sweeping power to suspend a
nurse’s license with severely limited due process rights. There
was also troubling language on patient abandonment issues, which
the MNA believed could open the door to increased opportunities
for nurses to be unfairly mandated to work overtime.
In September 1999, the Board held public hearings on its proposed
changes to regulations at 244 CMR 2.00, 7.00 and 8.00. Subsequent
to those hearings and the additional public comment period through
October 7, 1999, the Board significantly revised the language of
the proposed regulations at 244 CMR 2.00 and 7.00. In June, the
BORN published a second draft of the regulations. The MNA helped
arrange for public hearings on the new draft, and legislative oversight
was provided. The MNA, along with other nurses and individual practitioners
were then allowed a public comment period to propose additional
changes to the language of the regulations. In October, the board
published the document in its final form.
Patient abandonment, overtime
In conjunction with the promulgation of these new regulations,
the board has issued a long-awaited policy statement on the issue
of patient abandonment. This policy is applicable to the issue of
mandatory overtime and a nurse’s refusal to work a mandatory shift.
Click here for a copy of the BORN’s policy.
As originally proposed, the board’s definition of what constituted
patient abandonment appeared to leave it up to the staff nurse to
ensure there was someone to replace her before she could terminate
care at the end of her shift. The board contends this was never
its intention, and points out it has never disciplined a nurse for
patient abandonment in relation to a nurses’ refusal to work mandatory
overtime.
However, to clarify the issue for nurses and managers, the board
has drafted the policy statement on patient abandonment. This is
an important development for staff nurses, as nurse managers throughout
the system have used the threat of a charge of patient abandonment
before the BORN as a means of coercing nurses to work extra shifts.
However, the board’s policy statement on its new standard of conduct
for what defines patient abandonment clearly states that, “In general,
the board would not consider that patient abandonment has occurred
when a nurse is asked to work beyond the nurse’s established work
schedule and informs the employer that she or he is unable to do
so.”
Rachael Tierney, chairperson for the BORN, was more explicit in
her discussion of the board’s position when she presented testimony
on the new regulations before the Special Commission on Nursing.
Tierney stated, “The board has determined that four critical elements
must be present for patient abandonment to occur. Specifically,
the nurse must have:
1. Accepted responsibility for patient care.
2. Voluntarily withdrawn the care
3. Failed to give reasonable notice that the care was being withdrawn
so that continuing care arrangements could be made, and
4. Failed to report essential patient information to an appropriate
person.
The BORN has made clear that all four of these conditions must be
in place for patient abandonment to have occurred. Tierney went
on to state: “Given these requirements, the board finds it difficult
to foresee adequate grounds to support a complaint of patient abandonment
in connection with any nurse declining to work an additional shift
(emphasis added).
The MNA welcomes this policy statement so that nurses now have
this document to support the MNA’s own position that nurses should
have the right to refuse mandatory overtime without being subject
to an unfair charge of abandoning their patients. The board’s position
follows what has been the policy in other parts of the country,
particularly California.
In an interview with the Massachusetts Nurse, BORN Executive Director
Theresa Bonanno agreed that the onus is on management to ensure
there is appropriate staffing and that staff nurses are only obligated
to work their scheduled shifts.
According to Bonanno, “The board has always recognized nurse staffing
for an agency as the responsibility of administrative personnel.
When an unexpected staffing need develops, management may request
that a staff nurse work beyond the end of his or her shift, but
in general, declining that request is not a regulatory issue.
“The proposed regulation prohibiting patient abandonment never
implied or indicated in any way that employers could force nurses
to work overtime.,” Bonnano stated. “It is unfortunate that the
proposed regulation was misinterpreted and got connected to the
employment issue of mandatory overtime. The board does not consider
a refusal by a nurse to work beyond the number of hours agreed to
by the nurse as grounds for discipline, provided that the nurse
appropriately reports all essential information to a qualified individual
who will provide or provide for the ongoing care of the patient.”
Bonnano pointed out that the board would still need to evaluate
complaints on an individual basis, and there are circumstances that
might lead to a different interpretation. Bonanno gives the example
of a nurse in a long-term care setting who is the only licensed
provider in the building. At the end of her shift, if there were
no one with a license available to relieve him or her, “the BORN
would not support the nurse leaving those patients without any licensed
supervision.”
“In light of this change in policy, the MNA believes nurses will
be empowered to stand up for what is right and no longer be subjected
to forced overtime by the inappropriate threat of being charged
with patient abandonment,” said Denise Garlick, president of MNA.
The MNA believes this policy supports the fact that managers of
health care resources bear the primary responsibility for ensuring
their facilities have enough nurses available to provide the care
patients deserve.
Summary suspension authority
An area where the MNA was not successful in changing the BORN’s
approach to disciplining nurses involves the area of summary suspension
authority. Throughout this process, the BORN has continually sought
the right to summarily suspend a nurses’ license prior to engaging
in what the MNA considers appropriate due process. While the new
regulations do include due process provisions sought by the MNA,
the MNA has contended throughout this debate that the BORN lacks
the statutory authority to engage in summary suspension. The new
regulations, however, grant the BORN that right, when the BORN determines
that a nurse poses an immediate threat to the public. The regulation
allows the board to summarily suspend a nurses license, but the
BORN must hold a hearing on the complain against the nurse within
7 days, at which point a determination will be made as to whether
the suspension of the license will remain in effect.
The BORN contends that it would use this power only in the rarest
cases. The MNA is hopeful that this is in fact the case, but worries
about the BORN’s ability to conduct the rapid and thorough evaluation
of the merits of a complaint to meet the guidelines of the new suspension
authority.
According to the MNA, the board is notorious for taking a very
long time to settle complaints against nurses. The MNA is suspect
of their ability to fairly and effectively move on these complaints
and afford nurses due process and a fair hearing, especially in
light of the current environment in health care, where complaints
are rising due to systems problems that are placing nurses in precarious
situations.
Concerns on mandatory reporting
The MNA is equally concerned about new provision contained in the
new regulations that call for mandatory reporting of nurses by nurses
when, according to the BORN, “he or she directly observes another
nurse’s impaired practice; when he or she directly observes another
nurse abusing a patient; and when he or she directly observes another
nurse’s diversion of controlled substances.”
The mandatory reporting standard is especially troubling in relation
to the issue of reporting on a nurse when the reporting nurse “observes
another nurse’s impaired practice.” The MNA, along with many leaders
who specialize in the area of substance abuse treatment believe
this requirement is unfair to nurses suffering from the disease
of addiction, and will have the effect of preventing nurses who
need help with this illness from seeking assistance.
Carol Kowalski, chair of the MNA’s Addictions Committee and the
founder of the organization’s highly touted Peer Assistance program
testified before the nursing commission about the mandatory reporting
provision in the new BORN regulations.
She stated. “This will be most detrimental to our peer assistance
programs and nurse-run employee assistance programs throughout the
state. These programs rely on anonymity and confidentiality. Nurses
go to these groups for help and support because it is a place to
feel safe. It is a place where they can be guided into treatment
and a place that supports recovery.
“Mandatory reporting will now ask that nurses in these groups report
their participants’ addictive behaviors to the board. Mandatory
reporting to the board should not be our first response to this
disease. As with any disease, we should help our colleagues into
treatment.” Kowalksi adds that the BORN’s policy on mandatory reporting
flies in the face of longstanding theories regarding the treatment
of addiction, is in conflict with established law and practices
regarding the protection of confidentiality for those seeking treatment,
and shows a lack of understanding of addiction.
“Addiction is not a moral failing or an act of will; it is a disease
as defined by the American Medical Association,” Kowalski testified.
“Addiction is a disease that should be treated as any other disease
and not in such a punitive and discriminatory manner.”
Click here to view a copy of the BORN
policy on patient abandonment
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