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A Nurse’s Role/Responsibility Amidst a Pandemic Review of American Nurses Association (ANA) Scope & Standards of Nursing Practice By: Barbara Forshier, RN, BSN, JD Attorney/Owner Forshier Law, LLC, a Nursing License Defense Firm The National Council of State Boards of Nursing (NCSBN) utilizes the ANA standards of practice and ethics when educating nurses, and as such, is the body of knowledge I have researched for this blog. As licensed professionals we are held to standards of practice. Using the ANA’s “Scope and Standards of Practice” the standards of practice are enumerated as: 1) Assessment, 2) Diagnosis, 3) Outcome identification, 4) Planning, 5) Implementation, 5A) Coordination of care, 5B) Health teaching and health promotion, 6) Evaluation. This is the nursing process as we know it. 5B) says “The registered nurse employs strategies to promote health and a safe environment.” We all know that to practice nursing we need a healthy environment. The ANA states that we have an “ethical obligation to maintain and improve healthcare environments conducive to the provision of quality healthcare.” (Pg. 9). The ANA defines a Healthy Work Environment for Nursing Practice as one that is safe, empowering, and satisfying. It is not just the absence of real and perceived physical or emotional threats to health, but a place of physical, mental and social well-being, supporting optimal health and safety. (Pg. 21). This IS A REAL THREAT. These nursing leaders realized that the nurse and the practice environment must be healthy to care for others. So what should nurses do when their work environment is not healthy due to a critical shortage of personal protective equipment (PPE)? If a nurse is to do no harm, doesn’t that apply to self, community and family? What about using the same PPE between patient rooms? Does this sound like an environment that is supporting optimal health and safety? Today we are all facing the fight of our lives. We are in a pandemic the likes of which has not been seen in our lifetime. The Oregon State Board of Nursing (OSBN) recently posted this unconscionable directive to its nurses: The Board of Nursing has received reports of nurses refusing to care for patients when their hospital is following state OHA (guessing this is the Oregon Hospital Association) guidelines rather than the CDC or WHO. Per the Nurse Practice Act, a nurse has the legal ability to decline a patient assignment when the nurse does not have the knowledge, skills, abilities, and competencies to complete the assignment safely. The OSBN position statement regarding practicing nurses, personal protective equipment, and COVID-19 directs that if the only reason the nurse is refusing is because the organization is following OHA rather than CDC or WHO, that reason alone is not sufficient to refuse an assignment. Really? In Minnesota that is the equivalent of MHA, the Minnesota Hospital Association, telling us how to practice. This is not acceptable. Why? Because our profession demands a safe, healthy workplace. Nurses have a duty to be role models, advocates and to educate the public. Are we advocating for our communities if we become part of the problem by spreading this virus? Nursing is a science in which best practice is based in evidence. Evidence for PPE is not established by supply or lack thereof. It only takes a minute to observe the PPE used in China and Italy. China has stopped the spread of the virus. Why would a licensing board call on its nurses to martyr themselves? This is against everything that nursing stands for. We are not advocating for ourselves and our communities when we are the cause. Nurses need to be the solution. We see what is needed and must demand proper PPE to protect self and others. Will the Oregon State Board members take over when their nurses drop like flies from improper protection? A nurse must abide by the ANA code of ethics. One of the competencies is “Advocates for the rights, health, and safety of the healthcare consumer and others.” (Pg. 67). Additionally, as part of our ethical role, the nurse “integrates evidence and research findings into practice.” (Pg. 77). Standard 14 defines standards for quality of practice which first and foremost, “Ensures that nursing practice is safe, effective, efficient, equitable, timely and patient-centered.” (Pg. 79). Provision 5 of the ANA code of ethics states that “The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, . . .” ANA Code of Ethics, (2015 at pg. 19). How can a nurse fulfill this ethical mandate if he/she puts his/her wellbeing in jeopardy every time he/she enters a patient room without proper PPE? Until more is known about how the COVID-19 spreads, CDC and OSHA recommend using a combination of standard precautions, contact precautions, airborne precautions, and eye protection (e.g., goggles or face shields) to protect healthcare workers with exposure to the virus. https://www.osha.gov/SLTC/covid-19/controlprevention.html N95 respirators are the PPE most often used to control exposures to infections transmitted via the airborne route, though their effectiveness is highly dependent upon proper fit and use. The optimal way to prevent airborne transmission is to use a combination of interventions from across the hierarchy of controls, not just PPE alone. Applying a combination of controls can provide an additional degree of protection, even if one intervention fails or is not available. https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirators-strategy/index.html Minnesota Nurse Practice Act (a short list of what you, as a nurse, are responsible for. . .) 148.171 Subd. 15.Practice of professional nursing 7) providing safe and effective nursing care; (8) promoting a safe and therapeutic environment; (9) advocating for the best interests of individual patients; This work cannot be done without nurses and other frontline staff. What would happen if the Attorney for the Unions put out a “Cease and Desist” order stating staff will not practice unless they are properly protected and their Right to Know about harmful agents (viruses) in the environment is provided. Nurses (and all Healthcare Workers) Lives Matter #nurseslivesmatter Disclaimer: This blog does not constitute legal advice and is the opinion of the author Safety and Health Topics | COVID-19 - Control and Prevention | Occupational Safety and Health Administration Safety and Health Topics | COVID-19 - Control and Prevention Safety and Health Topics | COVID-19 - Control and Prevention | Occupational Safety and Health Administration Safety and Health Topics | COVID-19 - Control and Prevention See more at osha.gov

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But my Manager/Supervisor/DON/CNO/CNS said… Part 1 While nurses like to believe that the nurses in charge of them have the information necessary to make good decisions, often the decisions are not evidence based or in the best interest of our patients, or our nursing license. Rather the decisions may be made to save time, thereby saving money (often from a non-medically trained consultant) or upon the request of physicians. Therefore, each nurse MUST know the law and standards of nursing care for your area. Do not blindly follow new mandates. You, and only you, are responsible for your nursing license and the care you provide. What follows is the first of several examples that I have seen in my nursing career. It was decided that nursing staff would administer Ketamine to treat patients with chronic pain on a medical-surgical floor. The first question should be: What is this drug? Answer: It is classified as an anesthetic. The next question: Am I allowed to administer an anesthetic under my nurse practice act (NPA)? See link to Minnesota Board of Nursing: https://mn.gov/boards/assets/Stmt_Accountblty_RN_Admin_Anesthetics_2016_5-19_tcm21-37484.pdf Answer: Yes, as long as certain organizational policies and procedures permit this administration. Prior to this, we had been told that as PACU nurses we could administer Ketamine by this same group of managers/CNS’s. However, I refused until the policy accurately reflected our practice. This, despite management telling us, ‘Don’t worry, the policy is wrong. It will get fixed and in the meantime you may administer Ketamine in PACU’. I said no. Not until the policy is updated. Never practice outside of your facility’s policies/procedures. The Board states that there must be guidelines in place to monitor/assess the patient, provide emergency care, educate the patient, and each nurse must personally possess the knowledge of anatomy and physiology, pharmacology, cardiac arrhythmia recognition, etc. In this circumstance, a lower dose of ketamine was to be given for pain versus a sedation dose. However, each nurse should have a good understanding of the sedation continuum. When the policy was presented to us at the hospital practice committee, it stated that the patient would have their heart rate and rhythm monitored. However, this floor did not have telemetry. I stated that they would either have to change the policy/order-set to remove the word “rhythm” or put the patients on a tele floor. Despite the eye-rolling of some managers, the policy and order-set were both changed to reflect what would be the actual practice and procedure of Ketamine administration on this unit. As you see, the CNS in charge of this project was not putting her nursing license on the line. Certainly she did not intend to put the staff nurses in jeopardy either. But it would have. That is the reason that each new policy, procedure, and/or medication must be carefully vetted to ensure that nurses are: 1) acting within their scope of practice; 2) acting under a facility policy that accurately reflects the actual procedure/practice; 3) thoroughly educated in each medication as well as any reversal agents, if available; and 4) able to provide emergency care in the event the patient reacts negatively to the administration of the medication. MN.GOV mn.gov

Are the Disciplinary Actions of the Board of Nursing Fair? In 2015 the legislative auditor for the State of Minnesota reported about the processes at the Board of Nursing. Overall, they found that the decisions of the Board were reasonable and had “afforded the public a high degree of protection.” However, this report also noted that there were “problems with consistency of board decisions and the fairness of the board’s complaint resolution process.” Did you know that disciplinary decisions at the Board are often made by a non-nurse Board member? This public member is your judge and jury if you are called in for a disciplinary conference. This report noted a “marked difference in review panel recommendations to dismiss complaints, depending on whether the panel members were public or professional members of the board.” This finding is consistent to what I see in my practice. While the majority of cases are settled in a fair manner, I have had some very problematic cases that were not settled fairly. All of the problematic cases have been when there is a public member on the disciplinary panel. While I appreciate the great amount of time these public members put into this process, IT IS NOT FAIR! Especially when it is a nursing practice concern. And guess what? While the Minnesota Board of Nursing has only 1 board member on its disciplinary panels, the Minnesota Medical Board always has at least 2 physicians on their panels, along with 1 public member. The same with the Board of Physical Therapy, 2 therapists and 1 public member. The auditor put forth recommendations, one of which was: “The Minnesota Board of Nursing should require that an additional board member review and approve discipline review panel recommendations before they are sent to the full board for final action.” This has not happened. This report was made in 2015. I have made this request, and it was refused! The auditors’ report also discussed consistency, or the lack thereof. Your nursing license is considered property and as such you have Constitutional Protections that require Due Process, which is very basically Notice and the Opportunity to be Heard. You also have the right to Equal Protection under the law. The right to have the same/similar outcome as someone in the same/similar factual situation. The auditor also commented on this, when discussing consistency of outcomes the report stated, “Consistency means that similar complaints are treated similarly.” The report stated that while the full board has to vote to agree on the discipline there is very little debate over the recommendations of the Panel. The recommendations of the Review (discipline) Panel was at that time, accepted 95% of the time. So whatever the public member decides, usually goes. I am currently working on a case where the nurse did not even have the opportunity to have a hearing. Instead the public member believed the nurse’s PRACTICE was so egregious that they elected to go directly to a contested case hearing (a trial). Of course then the Board, via the Office of the Attorney General, seek to have the matter dismissed because the ‘facts’ are not in dispute and it circles back to the full board where the nurse is allowed 20 minutes to defend/keep his/her license. Therefore, there IS NO RIGHT TO BE HEARD. This should be a grave concern for all nurses. I will be seeking legislative reform along with other nurse-attorneys and MNA. Call/contact your state legislators. This has to change.

Why Should I hire an Attorney who is also a Nurse for my Nursing License Defense? At the recent TAANA (The American Association of Nurse Attorneys) Conference here in Minneapolis, one of the speakers told a story of a nurse who wanted to save some money and had her uncle, a real estate attorney, help her with a letter she received from the State Nursing Board. His advice? Don’t answer it, you don’t work in that state anymore, so why bother? Well let’s just say, tens of thousands of dollars later, this nurse learned a difficult lesson. A lesson that an attorney who specializes in professional license defense would know: an action in one state will likely affect your license(s) in another state. This nurse had multiple state licenses and ended up defending in every state; a very costly lesson. When choosing an attorney for your Minnesota Board of Nursing matter, be sure it is someone who knows what they are doing and has done this type of representation before. Law, like Nursing, is very specialized. If you work in ICU you would not likely be competent to work in Labor and Delivery, etc. Find an attorney who specializes in the area in which you need representation. There are a handful of attorneys who do this work consistently in the twin cities. Why choose a Nurse/Attorney? Just ask your insurer. Hopefully by now you have your own malpractice insurance. Nurses Service Organization (NSO) refers their client's cases to nurse/attorneys who are members of TAANA. A nurse attorney is first of all, a nurse. That means that you will receive the same care, compassion and advocacy that you provide to your patients. Additionally, as a nurse/attorney, I often ‘test’ my clients to ensure solid critical thinking skills in various practice scenarios. This is often what the nurse is exposed to at the Board hearing where the staff are all RNs. I know how a Pyxis/Omnicell works, I know how safe staffing is often an issue, and I know whether the nurse had a real issue or was thrown ‘under the bus,’ as happens so often in this profession. I also know that nurses often fail to take care of themselves leading to issues where they land in front of the Nursing Board. Trust a nurse, trust a nurse attorney.

Scam Alert! The American Association of Nurse Attorneys (TAANA) list serve has reported that several states, including Ohio and Virginia, have had phone call scams to their nurses stating that their license may be suspended, etc and requesting information such as social security number. Please know that any correspondence from the Board would be in writing.