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FAQs Relating to Nursing Practice in Disaster Areas

RN/LVN FAQS- Hurricane Harvey

1) In a disaster, is there an expansion to the registered nurse (RN) or licensed vocational nurse (LVN) scope of practice?

The RN and LVN scope of practice remains unchanged in a disaster. The Nursing Practice Act (NPA) describes a defined limit to nursing practice, as nursing practicedoes not include acts of medical diagnosis or the prescription of therapeutic or corrective measures” [NPA 301.002(2)&(5)]. The practice of nursing requires the acts/procedures being performed be within the scope of that particular nurses’ practice and that appropriate orders be in place for acts that go beyond the practice of nursing.

The BON website contains guidance in the determination of what is within an individual nurse’s scope of practice. Board Staff recommend review of the following documents:

· Board Rule 217.11—Standards of Nursing Practice,

· Position Statement 15.27—The Licensed Vocational Nurse Scope of Practice,

· Position statement 15.2--- The Registered Nurse Scope of Practice

· FAQsLVNs “Supervision of Practice”and Regarding Position Statements 15.27, The LVN Scope of Practice, and 15.28, The RN Scope of Practice.

2) During a disaster, do I still need physician orders to provide medications to patients?

The NPA describes a defined limit to nursing practice, as nursing practicedoes not include acts of medical diagnosis or the prescription of therapeutic or corrective measures” [NPA 301.002(2)&(5)].

Both LVNs and RNs must have a valid order for “the administration of a medication or treatment as ordered by a physician, podiatrist, or dentist” [NPA 301.002(2)(C)]. In a disaster, nurses may be utilizing delegation orders from a physician to provide aspects of care. Position Statement 15.5 discusses nurses with the responsibility for initiating standing orders. This position statement outlines the differences between:

· Standing delegation orders -written instructions, orders, or procedures that provide the authority for a plan to be implemented for patients presenting prior to being examined or evaluated by a physician

· Standing medical orders - written instructions, orders or procedures prepared by a physician or approved by the medical staff of an institution for patient that have been evaluated or examined by a physician, and

· Protocols- narrowly defined by TMB and applicable only to Advanced Practice Registered Nurses (APRNs) and Physician Assistants (PAs)

Board staff suggest review of this position statement as a resource for understanding the important elements of standing orders. Carrying out some physician’s orders may constitute the practice of nursing, but others may be considered delegated medical acts. Board Position Statement 15.11—Delegated Medical Acts—is also a valuable resource for nurses. Delegated medical acts do not diminish the responsibility in any way of the nurse to adhere to the Board's Standards of Nursing Practice, Board Rule 217.11.

3) NURSING WORKFORCE ISSUES DURING A DISASTER:

a. During a disaster, can I be required to work overtime?

During times of disaster, there is an unexpected increased need for health care personnel. An emergency, disaster, or unforeseen event constitutes an exception to the prohibition of mandatory overtime and is detailed in the Health and Safety Code-Licensing of Health Facilities: Chapter 258 Mandatory Overtime for Nurses Prohibited. Board rule 217.11(1)(A) requires nurses to know and conform to the Texas Nursing Practice Act and the Board’s rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse’s current area of nursing practice.

b. Is it patient abandonment if I call in sick during a disaster?

A nurse may have to choose between the duty to provide safe patient care and protecting the nurse's own life during an emergency, including but not limited to disasters. These situations are challenging for all nurses and their employers, therefore the Board recommends policies and procedures be developed, and periodically reviewed to provide clear guidance and direction to nurses in order for patients to receive safe and effective care.

All nurses, regardless of practice setting or position title/role, are required to adhere to the NPA and Board Rules. There is also no routine answer to the question, "When does the nurse's duty to a patient begin?" The nurse's duty is not defined by any single event such as clocking in or taking report. From a BON standpoint, the focus for disciplinary sanctions is on the relationship and responsibility of the nurse to the patient, not to the employer or employment setting. Position Statement 15.6 Board Rules Associated with Alleged Patient "Abandonment" provides additional guidance on this topic.

The Board believes nurses should be vigilant and exercise sound professional judgment when accepting assignments that may be requested by employers who need nurses to fill vacant shifts for licensed nursing staff, or other staffing-related situations. Clear communication between staff and supervisors is essential to arrive at solutions that best focus on patient care needs without compromising either patient safety or a nurse’s license.

c. What do I do if my employer requires me to stay for a double shift during a disaster and I am already physically exhausted? I am concerned I cannot give proper care and attention to my patients due to fatigue.

A nurse must consider Board Rule 217.11—Standards of Nursing Practice Sections (1)(B) & (1)(T), that state a nurse must 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.

If a nurse feels he/she is being asked to accept an assignment that would potentially cause the nurse to violate his/her duty to a patient, the nurse may be able to invoke “safe harbor,” depending on whether or not the nurse’s employer meets requirements that would make it mandatory for the employer to have a peer review plan in place. This is established in the NPA, Chapter 303, Peer Review, and in 22 TAC §217.20, Safe Harbor Peer Review and Whistleblower Protections. Safe Harbor has two effects related to the nurse’s license:

1) It is a means by which a nurse can request a peer review committee determination of a specific situation in relation to the nurse’s duty to a patient; and

2) It affords the nurse immunity from Board action against the nurse’s license if the nurse invokes Safe Harbor in accordance with 22 TAC §217.20. For the nurse to activate this immunity status, the nurse must notify the assigning supervisor at the time the assignment request is made, and the nurse must submit the required information in writing as specified in 22 TAC§217.20(d)(3)(A) or on the Board’s Safe Harbor Quick Request Form.

d. We cannot get enough staff and I feel my patient load is unsafe. If I invoke Safe Harbor, can I just refuse the assignment?

Patients are better off with the nurse than without the nurse in the vast majority of cases, and this is especially true in disasters. However, Rule 217.20(g) clarifies that a nurse may accept the assignment when safe harbor has been invoked and is pending peer review determination unless the requested assignment or conduct is one that:

1. constitutes a criminal act;

2. constitutes unprofessional conduct; or

3. the nurse lacks the basic knowledge, skills, and abilities necessary to deliver nursing care that is safe and that meets the minimum standards of care to such an extent that accepting the assignment would expose one or more patients to an unjustifiable risk of harm.

During a disaster, staffing is typically a challenge. A request to accept an assignment when a nurse believes the nurse staffing levels are unsafe would be conduct a nurse normally would engage in pending peer review’s determination since the supervisor normally would have some reasonable legal or factual basis to support her/his belief that the requested assignment does not violate a nurse’s duty to a patient.

APRN FAQs—Hurricane Harvey

1) Scope of practice

a. What is my APRN scope during emergency situations such as a natural disaster?

Your scope of practice is based on your formal education in your advanced practice role and population focus area as provided for in Board Rule 221.12. Additional information regarding scope of practice is available here.

b. Is my scope of practice expanded during the emergency situation?

No. You are required to practice in the role and population focus area for which you have been educated and licensed by the Texas Board of Nursing. If you need to provide care to patients who are not within the population focus area of your advanced practice licensure, you may provide care as a registered nurse. You must only provide patient care services that are within the RN scope of practice when providing care to patients that are not in your APRN role and population focus area (for example, you may not engage in aspects of medical diagnosis and prescribe medications for these patients).

c. If a physician delegates the authority to expand my scope of practice or agrees to sign progress notes, may I do so?

No. APRNs have a licensure duty to their patients that supersedes physician delegation and is in effect at all times when providing nursing care. A physician may not authorize you to exceed the scope of your licensure nor is physician co-signature an acceptable mechanism for expanding one’s scope of practice.

2) Physician Delegation to Provide Medical Aspects of Care and Prescriptive Authority

a. Can APRNs who hold Texas licensure be exempted from requirements for protocols and prescriptive authority agreements?

All Texas licensees should already have these documents in place for practice in Texas. However, the Board is aware of the challenges associated with APRNs providing emergency health care services in locations in which they may not be able to contact their delegating physicians due to a natural disaster. Texas licensed APRNs must establish a verbal agreement for delegated authority to provide medical aspects of care and prescriptive authority with a physician at the site where they are providing emergency care services while the waiver of certain Board Rules by the Office of the Governor is in effect and during the period the disaster declaration is in effect. The waiver of this requirement is only applicable to those APRNs who are providing health care services as part of the disaster relief efforts. APRNs practicing in their regular practice sites must continue to practice under their protocols/prescriptive authority agreements.

b. Do APRNs who are licensed in other states but are in Texas to help with relief efforts have to develop these documents prior to practicing?

All APRNs in Texas are required to have delegated authority to provide medical aspects of care. The physician and APRN should have an established understanding of the limits of the APRN’s practice. However, to the extent Board Rules 221.13(d) and 222.5 require a time consuming or tedious production of documents establishing the physician and APRN’s agreement, a waiver from requirements to execute a written protocol and/or prescriptive authority agreement is in effect to permit the providers to spend their time with patients and not in the preparation and negotiation of such agreements. APRNs must establish a verbal agreement for delegated authority to provide medical aspects of care and prescriptive authority with a physician at the site where they are providing care.

c. Must the physician be licensed in Texas?

The physician must be licensed by the Texas Medical Board or be permitted to practice medicine in Texas under the emergency provisions of the Texas Government Code. For additional information regarding emergency procedures instituted by the Texas Medical Board, please visit their website.

3) Prescriptive Authority

a. May I use prescriptive authority to assist in emergency relief efforts?

Yes. If you are licensed in Texas and have prescriptive authority, you may prescribe drugs and devices to patients during the emergency situation. Before doing so, you must have a verbal agreement with a physician at the disaster relief site where you are providing care

If you are assisting with relief efforts in Texas based on APRN licensure and prescriptive authority in another jurisdiction, you must work with a physician to delegate the authority to prescribe. For example, this can be a physician physically present at the practice site or a medical director for the site. You do not need to develop written prescriptive authority agreements while the waiver of certain Board Rules by the Office of the Governor is in effect and during the period the disaster declaration is in effect.

b. Can I prescribe controlled substances?

The waiver of the requirement for a written prescriptive authority agreement does not apply to prescribing controlled substances (see information available from the Texas Medical Board). Texas licensed APRNs who already have a written prescriptive authority agreement with a delegating physician that includes prescribing controlled substances should discuss their ability to prescribe controlled substances with the delegating physician with whom they are registered with the Texas Medical Board. If both parties are in agreement that the APRN may prescribe controlled substances in support of disaster relief efforts, the APRN must obtain approval from the DEA. Information is available on the DEA’s website at: https://www.deadiversion.usdoj.gov/disaster_relief.htm. REMINDER: IT IS A VIOLATION OF FEDERAL LAW AND BOARD RULE TO ISSUE PRESCRIPTIONS FOR CONTROLLED SUBSTANCES UNDER ANOTHER PROVIDER’S DEA REGISTRATION.

APRNs who are licensed in other jurisdictions will not be eligible to prescribe controlled substances as part of the disaster relief efforts because the waivers granted by the Office of the Governor do not include authority to prescribe controlled substances.