RNSG 2435 Nursing Jurisprudence
Refusal to work overtime - NPA Section 301.356
"The refusal by a nurse to work mandatory overtime does not constitute patient abandonment or neglect." On the other hand: •Standards of Nursing Practice - Rule 217.11 •The primary rule applied to practice issues •Each nurse required to promote a safe environment for clients and others •If a nurse knows, or should have known, that a patient was potentially in danger by being left unattended the nurse's duty is always to act in the best interest of the patient.
Nursing Jurisprudence
"the application of the principles of law as they relate to the practice of nursing, to the obligations of nurses to their patients, and to the relations of nurses with each other and with other health care professionals" (Medical Dictionary, © 2009 Farlex and Partners).
Safe Harbor: A nurse may engage in the conduct while awaiting Nursing Peer Review (NPR) unless:
-The nurse lacks the basic knowledge and skills necessary to render care at a minimally competent level and assignment would expose patient(s) to an unjustifiable risk of harm. -The conduct would constitute unprofessional conduct.
Safe Harbor: Chain After Nurse Completion
1.The nurse supervisor or administrator who made the assignment or gave the directive in question 2.The nurse administrator 3.The peer review committee 4.The physician who reviews the medical reasonableness of any physician's order (if applicable) 5.The nurse administrator who reviews the peer review findings or acts in response to them 6.The nurse who initiated the request
Exclusion to MI Rule (217.16)
A nurse involved in a minor incident need not be reported to the Board unless the conduct indicates the nurse: -Creates a significant risk of physical, emotional or financial harm to the client -Lacks a conscientious approach or accountability -Lacks knowledge and competency and can not be easily remediated -Pattern of multiple minor incidents *Five minor incidents within a 12 month period - reported to peer review
The New Enhanced Nurse Licensure Compact (eNLC): Eleven Requirements
An applicant for licensure in a state that is part of the eNLC will need to meet the following uniform licensure requirements: 1.Meets the home state's qualifications for licensure or renewal of licensure, as well as, all other applicable state laws; 2.Has graduated or is eligible to graduate from a licensing board-approved RN or LPN/VN prelicensure education program; or has graduated from a foreign RN or LPN/VN prelicensure education program that (a)has been approved by the authorized accrediting body in the applicable country and (b)has been verified by an independent credentials review agency to be comparable to a licensing board approved pre-licensure education program; 3. Has, if a graduate of a foreign pre-licensure education program not taught in English or if English is not the individual's native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing and listening; 4. Has successfully passed an NCLEX-RN® or NCLEX-PN® Examination or recognized predecessor, as applicable; 5. Is eligible for or holds an active, unencumbered license; 6. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the Federal Bureau of Investigation and the agency responsible for retaining that state's criminal records; 7. Has not been convicted or found guilty, or has entered into an agreed disposition, of a felony offense under applicable state or federal criminal law; 8. Has not been convicted or found guilty, or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis; 9. Is not currently enrolled in an alternative program (versus incarceration); 10. Is subject to self-disclosure requirements regarding current participation in an alternative program; and 11. Has a valid United States Social Security number.
BON VS. Professional Organizations
Board of Nursing •Represent people of Texas •Can not lobby the legislature (may educate) •Does not regulate practice settings -Services: Licensing, Enforcement Services, Audit of CE, Information Services Professional Associations •Represent their members •Do lobby the legislature •Efforts to improve work conditions and benefits for nurses NOT BON SERVICES: Job Referral Services, Legal Referral, Salary Question, Co-worker disputes, Employment issues
BON Rule 224
Delegation for acute care clients Unstable / Unpredictable setting -Acute Care Setting - 24 hour availability of HCP -Any areas NOT considered "independent" setting
BON Rule 225
Delegation for stable clients in independent living environments Stable / Predictable setting -Independent Living Situation - functional disability precludes the patient / client performance of high-level Health Maintenance Acts (HMAs) or lower-level Activities of Daily Living (ADLs) -Involvement of Client's Responsible Adult (CRA) or UAP (tasks acknowledged in writing) -Medication Aide Permit Holder - UAP with specific, documented training and demonstrated competence to safely pass pre-calculated medication dosages. No calculation, no initial dose, No IVP / IVPB, no tube feed, No verbal orders
What do I do if I question the safety of an assignment?
FIRST: be clear (focus on facts) about what it is that you are being asked to do and what it is about the request that makes you uncomfortable: •A patient condition/problem you are unfamiliar with? •The number of patients regardless of acuity? •An unfamiliar setting/unit? •The lack of support staff? •Geographic distance between patients? •Something else? NEXT: consider what about the assignment could be changed to make you feel comfortable accepting it: •A resource person / remedial training was available for questions or assistance? •Several of your patients will be discharged during the shift? •An additional CNA will be assigned to work with you? THEN: state your concern to the person making the assignment; identify what about the assignment concerns you and what ideas you have to modify the assignment LISTEN to the response: Did he/she understand your concern? Was he/she able to offer any ideas you had to modify the assignments to make the assignment feasible?
Disciplinary Action
Factors that can lead to disciplinary action •Chemical dependency •Alcohol dependency •Mental Illness •Even prescription drugs can impair fitness to practice •Fatigue & Sickness -Can greatly impact a nurses ability to safely perform his/her duties -Incidents of medical error increase after nurse work more than eight hours -Duty to patient is more important than any other consideration
BON Ethical Conduct
Five categories of trust cited by BON 1. Honesty -Accurate and reliable documentation 2. Accountability -Knowing actions and side effects of medications 3. Trustworthiness -Following proper procedure when securing patient valuables 4. Reliability -Keeping up with continuing education requirements 5. Integrity -Accepting accountability for your own actions
Protection for Refusal to Engage in Certain Conduct: NPA 301.352
Gives the nurse the right to refuse to engage in conduct related to patient care if they believe the conduct would violate the NPA or Board rules.
Chapter 304 of the NPA: Nurse Licensure Compact
Home State License - nurse must be licensed in state in which he/she permanently resides Party State - other states belonging to the compact A nurse may practice in any party state on his/her home state license Can hold home state license in only one state If move from one party state to another rule 220.2 permits nurse to practice on former home state license for 90 days while waiting for new license If move to a non party state - license converts to a single state license Must comply with the laws of the state in which currently practicing Violations in practice occurring in a remote state will be reported to home state nursing board Home state will investigate and take disciplinary action
Decision Making Model for Determining Nursing Scope of Practice: Step 1
Is the activity or intervention allowed by the Texas NPA; Board rules, guidelines, or position statements; or any law, rule, or regulation from any agency? •If NO, STOP! The act is NOT within your scope of practice. •If YES, continue to next step.
Decision Making Model for Determining Nursing Scope of Practice: Step 5
Is there documented evidence of your current competence (education, knowledge, skills, abilities, experience and judgements) to perform the activity or intervention safely & effectively, in accordance with the accepted nursing "standard of care"? •If NO, the act is NOT within your scope of practice. •If YES, continue to the next step.
Safe Harbor: Quick Request Form
May be written on a blank piece of paper, but must include: -The nurse's name and signature -The date and time of the request -The location of where the assignment is to be completed -The name of the person making the assignment -A brief explanation of why Safe Harbor is being requested -Complete formal written form prior to leaving shift
Board Process for Investigating Complaints
Nurse notified of investigation and invited to respond Investigator gathers and reviews evidence & nurses response Decision made by board
Texas Nursing Laws and Rules
Our primary resources for State law includes: •Texas Board of Nursing (BON) •Nursing Practice Act (NPA) •Helpful Links: •Rules and Regulations •Rules Changes/Proposed Rules •Position Statements
Scope of Practice Eight Step Decision Making Model
Provides direction for nurses regarding safe scope of practice
Types of Remediation if Board Finds Nurse to be at Fault
Remedial Education •Take educational classes specific to the issue / fines? Probation / Supervision •Work under direct or indirect supervision of another nurse Work Environment •Work in stable environment; e.g. not home health Revocation / Losing license is not common
BON Good Professional Character
Rule 213.27 •Distinguish right from wrong •Think and act rationally (prudent) •Keep promises and honor obligations •Be accountable for own behavior •Promptly disclose facts that could enhance the health of a patient or protect them from unnecessary harm. •Virtues and vices are traits of character expressed by habitual patterns of behavior. Aristotelian Virtues include: •Courage •Temperance •Liberality •Wittiness •Modesty •Greatness of soul •Good temper or gentleness •Being agreeable with company
BON Disclosure of Criminal Behavior
Rule 213.28 •BON believes that criminal behavior is highly relevant to individuals' fitness to practice nursing (public trust) •Must report any past criminal behavior or pending charges •Minor class C misdemeanors are excluded --Parking tickets, speeding tickets, jaywalking
BON Professional Boundaries
Rule 217.12 (6)(D) & 217.11(1)(J) •Must recognize & maintain professional boundaries •Do or say nothing in private or public (to include social media) that cannot be documented in the patient's record (National Council of State Boards of Nursing (NCSBN)) Violations of professional boundaries include: •Physical •Sexual •Emotional •Financial exploitation of client or significant other
BON Basic Nursing Education
Standard 217.11 Education Preparation •Section 1 - all nurses •Section 2 - RNs •Section 3 - LVNs •Section 4 - APRN Differentiated Essential Competencies (DECs) •Knowledge, Abilities, Skills, Judgment of New Graduate Nurse •Incorporated into Grayson Curriculum •Used during New Hire Orientation
Licensure & Regulation
Temporary Permit -GN permit expires in 75 days -When pass/fail NCLEX Renew Online -60 days prior to expiration BON will send card Continuing Education (CE) -20 hours in 2 years -Fist time renewal exempt -CE hours must be in area of practice -Keep records for 4 years
Nurse Practice Act (NPA)
The NPA sets forth specific requirements to practice nursing in each state. The NPA is a statute that defines, in general terms, the practice of registered nurses, advance practice nurses, midwives, certified nurse anesthetists, and licensed practical nurses. •Defines nursing and the boundaries of the scope of nursing practice •Identifies types of licenses and titles •States the requirements for licensure •Protects titles •Identifies the grounds for disciplinary action (NCBSN, 2015)
NPA: Chapter 301
There are numerous sections of Chapter 301, addressing: •How the board is appointed, it's general powers and duties •Public interest information and complaint procedures •License requirements •License renewal •Practice by license holder, such as supervision of vocational nurse, policies applicable to nurses employed by medical and dental units, and refusal of mandatory overtime •Reporting violations and patient care concerns •Prohibited practices and disciplinary actions •Other penalties and enforcement provisions •Anesthesia in outpatient setting •Corrective action proceeding
Whistleblower Protection
Whistleblower Protections--Protections available to a nurse that prohibit retaliatory action by an employer or other entity because the nurse: (A) made a good faith request for safe harbor nursing peer review under TOC §303.005(c) and this section; or (B) refused to engage in an act or omission relating to patient care that would constitute a violation of the NPA or Board rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage in Certain Conduct). A nurse invoking safe harbor under this section must comply with subsection (g) of this section if the nurse refuses to engage in the conduct or assignment; or (C) made a lawful report of unsafe practitioners, or unsafe patient care practices or conditions, in accordance with TOC §301.4025 (report of unsafe practices of non-nurse entities) and §217.19(j)(2) of this title.
Fitness to Practice
all the qualities and capabilities of an individual relevant to his or her capability to practice as a nurse, including but not limited to freedom from any cognitive, physical, psychological or emotional condition or a dependence on alcohol or drugs, that impair his or her ability to practice nursing •Rule 213.29 - Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters
Multistate Regulation of Nursing (MSR)
eNLC States as of Jan 2020
Chapter 303 of the NPA: Peer Review
•"Nursing Peer Review Committee" - a committee established under the authority of the governing body of a national, state, or local nursing association, a school of nursing, the nursing staff of a hospital, health science center, nursing home, home health agency, temporary nursing service, or other health care facility, or state agency or political subdivision for the purpose of conducting peer review. •The committee includes an employee or agent of the committee, including an assistant, an investigator, an intervenor, an attorney, and any other person who serves the committee in any capacity. •An employer must establish a peer review committee if they regularly employ, hire or contract more than 8 nurses (see required composition in notes below). •The employer must establish policies and procedures governing the peer review committee process. •The committee will evaluate nursing services, qualifications of a nurse and the quality of care provided by a nurse and the merits of a complaint. •The committee will determine whether the incident(s) needs to be reported to the BON.
Safe Harbor Nursing Peer Review (SHNPR): Rules 217.19 and 217.20
•Allows a nurse to accept an assignment and provide the best care they are capable of without fear of licensure action if they make a practice error. •Better to have a nurse on duty than no nurse at all because the nurse refused the assignment •Safe Harbor does protect the nurse's license, but does NOT protect the nurse from civil action. •Before refusing an assignment, must recognize that the patient comes first. •A nurse may refuse an assignment if he/she lacks the basic knowledge and ability that would be necessary to render care. •The assignment would constitute unprofessional behavior such as fraud, theft, patient abuse or falsification. •Must be invoked, in good faith, before engaging in the activity, or •Anytime an assignment has changed that the nurse believes, in good faith, may result in patient harm •The nurse must notify the supervisor in writing or verbally (2019 change) •The supervisor may not refuse to accept the form •May use Quick Request Form to make initial written request •Comprehensive Written Request must be completed before leaving the work setting
Floating to an Unfamiliar Area
•Always responsible for providing safe patient care •May request training prior to having to float to another unit •May invoke Safe Harbor --If floating due to a staffing shortage •Nurse may refuse assignment •FAQs - Floating to an unfamiliar area
What is NEVER a minor incident?
•An error that contributed to a patient's death or serious harm •Criminal Conduct, NPA Section 301.4535 •A serious violation of Unprofessional Conduct Rule 217.12 (fraud, theft, patient abuse or exploitation) •A practice-related violation involving impairment or suspected impairment by reason of chemical dependency
Incident Based Peer Review (IBPR) Committee
•Any facility employing 10 or more nurses must have a peer review committee •Referral starts with an error/incident •Peer review without administrators •Fact finding mission •Evaluation of practice in an atmosphere of collegiality •Determine if incident has merit and should be reported to the Board
Filing a Complaint Against Another Nurse
•Any violation of the Board's rules must be reported •Report through facility's Chain of Command •Must be written and signed by person making the report •Include the identity of the nurse being reported •Contain any addition information required by the Board •All complaint information is confidential •Duty to patient and mandatory reporting requirement •Failure to report - violation NPA 301.402(b)
Decision Making Model for Determining Nursing Scope of Practice: Step 7
•Are you prepared to accept accountability for the provision of safe care and the outcome of the care rendered? •If NO, the act is NOT within your scope of practice. •If YES....... at this point, you are confident in your knowledge and skills, and prepared to accept the consequences of your actions...
Delegation vs. Assignment
•Delegation - authorizing an unlicensed person (UAP) to provide nursing services while retaining accountability for how the unlicensed person performs the task. It does not include situations in which an unlicensed person is directly assisting a RN by carrying out nursing tasks in the presence of a RN. •Assignment - the routine care, activities, and procedures that are within the authorized scope of practice of a licensed nurse (RN or LVN) or part of the routine functions of the UAP
Incident-Based Nursing Peer Review (IBNPR) Due - Process Rights
•Facility must have policies in place about peer review •Peer review committee must comply with requirements •Nurse must receive notice and will have opportunity to review documents and submit a response •Nurse may hire own attorney •Nurse will get feedback after the decision •Nurse will have a chance to respond
Safe Harbor Request to Question the Medical Reasonableness of a Physician's Order
•For those occasions when the reason for the nurse's need to invoke Safe Harbor is related to the actions or orders of a physician •Nurse will likely only need to use this form by itself.
Safe Harbor: Withdraw Request
•If the situation is resolved the nurse may withdraw the Safe Harbor request •May still have NPR of the situation - See Comprehensive Request for Safe Harbor form - #10 •Rule 217.20(g)(2) - Requires the nurse and supervisor collaborate in an effort to identify as assignment that is "within the nurse's scope"
Decision Making Model for Determining Nursing Scope of Practice: Step 8
•If you are an LVN, will adequate supervision be available? (Skip if you are an RN) •If NO, the act is NOT within your scope of practice. •If YES.......
Decision Making Model for Determining Nursing Scope of Practice: Step 4
•Is performing the activity or intervention consistent with current? •A) evidence-based practice findings? •B) scope of practice / position statements from national nursing organizations? •If NO, the act is NOT within your scope of practice. •If YES, continue to next step
Decision Making Model for Determining Nursing Scope of Practice: Step 2
•Is the activity or intervention authorized by a valid order? •Is there a valid order? Is one necessary? •Does a current policy exist regarding the procedure? •Clarify any questionable order(s) - Rule 217.11 (N) •If NO, the act is NOT within your scope of practice. •If YES, continue to the next step.
Decision Making Model for Determining Nursing Scope of Practice: Step 3
•Is the activity or intervention consistent with current policies or procedures in your employing organization or facility? •If NO, the act is NOT within your scope of practice. •If YES, continue to next step
Red Flags
•Lack of energy •Frequent absences •Spike in patients' need for pain medication •Lateness to work •Red eyes •No or unusual documentation •Frequently stands behind other nurses signing out medication
Standards of Nursing Practice - Rule 217.11 (RN)
•Make nursing diagnosis •Develop nursing care plan •Evaluate pt response to nursing care •Perform comprehensive assessment •Delegate tasks to unlicensed personnel •Practice independently within the NPA and Board rules •Education to care for all patients http://www.bne.state.tx.us/practice_bon_position_statements_content.asp
Minor Incidents (MI)
•Minor Incident (MI) -Rule 217.16 •Conduct that does not indicate the nurse's continuing to practice professional nursing poses a risk of harm to the client or other person, NPA section 301.401 *Simple mistakes
Patient Abandonment
•NPA / BON Rules do not define abandonment •If nurse leaves employment - not a licensure issue (employment issue) •If nurse violates duty to patient (licensure issue) •BON does not define when nurse's duty to patient begins •FAQs - When does duty to patient begin and end? •Position Statements - Abandonment
BON Duty to the Patient: Position Statement 15.14
•Neither physician's order or facility's policy can override the Nursing Practice Act, Rules and Regulations •Lunsford vs Board of Nurse Examiners •Landmark case - see handout - duty to intervene! •https://www.leagle.com/decision/19831039648sw2d39111001
Prohibited Tasks (Rules 224.8 & 225.12): Tasks NOT to be Delegated
•Nursing Assessments •Plan of Care •Professional Judgment & Intervention •Responsibility for Initial Teaching •Medication Administration, including IV fluids --Prohibited in acute care settings --May be delegated in independent living situations (see previous chart)
Standards of Nursing Practice - Rule 217.11 (LVN)
•Participate in planning of nursing care •Assist in evaluating pt response to treatment •Complete focused nursing assessment •Implement appropriate aspects of nursing care •Practice must be supervised •Educated to care for patients with stable and predictable conditions
Decision Making Model for Determining Nursing Scope of Practice: IF YES TO ALL STEOS
•Perform the act or intervention based upon a valid order when necessary, and in accordance with appropriately established and current policies, procedures and evidence-based practices: and assume accountability for provision of safe care.
NOT Patient Abandonment
•Resignation without notice - assuming the nurse's work shift has been completed •Refusal to work additional shifts, either "doubles" or extra shifts on days off •"No call, No show" - constitutes employment / employer abandonment - not a BON issue New law 2009 - SB 476 •Nurse may refuse to work mandatory overtime •Hospital may not take action against that nurse •Does not constitute patient abandonment
Nurses Responsibility During an Investigation
•Respond promptly to all requests for information •Keep your contact information current - telephone and mailing address •Feel free to contact investigator at any time to ask questions •Do not ignore any mail from the Board
Mandatory Overtime
•SB 476 (01 SEP 2009) permits nurses to refuse to work overtime •Defined as a requirement to work days or hours that are in addition to the hours or days scheduled regardless of the length of a scheduled shift or the number of scheduled shifts each week. •Time immediately before or after a shift (report or documentation) is NOT included •Pre-scheduled and compensated on-call time is NOT included NOT prohibited when: •An ongoing procedure requires a nurse's presence •During a disaster •In certain emergencies
Guidelines to Avoid Disciplinary Action
•Select the right place to work - start on Med-Surg? •Select the right position - new grad as Charge or Supervisor? •Recognize hazards of being overwhelmed or disorganized = errors •Will you have a preceptor focused on your development? •Is ancillary staff sufficient - numbers, training? •Are assignments manageable / appropriate? •Follow all facility policies / procedure r/t narcotics •Follow all facility policies / procedure r/t blood administration •Is EMR and computer support available? •Document all HCP -patient related conversations •Document all non-POE orders ASAP and ask the HCP to cosign immediately •Stay in your lane - know your scope of practice •If you can not organize, prioritize, or find help, consider resigning •If you are struggling, and know you are being closely observed, consider resigning, rather than being fired
Nursing Peer Review
•Separate from Board review •Confidential •Two types of nursing peer review -Incident-based (IBNPR) -Safe Harbor (SHNPR)
The New Enhanced Nurse Licensure Compact (eNLC)
•The NCSBN states "The Enhanced Nurse Licensure Compact (eNLC) increases access to care while maintaining public protection at the state level". •https://www.ncsbn.org/enhanced-nlc-implementation.htm •11 requirements
The Mission of the TBON
•The mission of the Texas Board of Nursing ("BON" or "Board") is to protect and promote the welfare of the people of Texas by ensuring that each person holding a license as a nurse in this state is competent to practice safely. • •The Board fulfills its mission through the regulation of the practice of nursing and the approval of nursing educational programs. • •This mission, derived from the Nursing Practice Act, supersedes the interest of "any individual, the nursing profession, or any special interest group." (Texas Board of Nursing)
BON Duty to the Patient
•This duty is described in the Code of Ethics for Nurses. "The nurse promotes, advocates for, and strives to protect the health, safety and rights of the patient." •The BON Rule 217.11(S)(T) states that nurses must make and accept, "only those assignments that take into consideration client safety and that are commensurate with the nurse's educational preparation, experience, knowledge, and physical and emotional ability." •Texas courts have upheld that the nurse's obligation to the patient supersedes facility policies *ADVOCATE FOR YOUR PATIENTS!!! *MAIN MISSION OF THE BON!!!
Nurses who believe they are being required to work prohibited mandatory overtime should take concerns to
•Unit Manager •Staffing Committee •DSHS - if not addressed internally
Decision Making Model for Determining Nursing Scope of Practice: Step 6
•Would a reasonable and prudent nurse perform the activity or intervention in a similar circumstance? •If NO, the act is NOT within your scope of practice. •If YES, continue to the next step. Prudence (https://www.merriam-webster.com/dictionary/prudence) •1: the ability to govern and discipline oneself by the use of reason •2: sagacity or shrewdness in the management of affairs •3: skill and good judgment in the use of resources •4: caution or circumspection as to danger or risk
