FAQs Relating to Nursing Practice in Disaster Areas

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 practice “does 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
• FAQs LVNs “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 practice “does 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:

• 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.

• 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.

• 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 nursing peer review plan in place. This is established in the NPA, Chapter 303, Peer Review, and in Board Rule 217.20, Safe Harbor Nursing Peer Review and Whistleblower Protections. Safe Harbor has two effects related to the nurse’s license:
• 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
• Affords a nurse immunity from Board action against the nurse’s license if the nurse invokes safe harbor in accordance with Board Rule 217.20. For the nurse to activate this immunity status, the nurse must notify the assigning supervisor prior to engaging in the conduct or assignment that he/she is invoking safe harbor, and the nurse, or nurse supervisor in certain circumstances, must document the required information as specified in Board Rule 217.20(d).  Please see the Safe Harbor Nursing Peer Review FAQs also available on the BON website.

• A nurse may orally invoke safe harbor due to immediate patient care needs by notifying the nurse's supervisor of the request. The supervisor must then document all the requirements specified in Board Rule 217.20(d)(3)the Safe Harbor Quick Request. A detailed written account of the safe harbor request that meets the requirements of the Comprehensive Written Request for Safe Harbor Nursing Peer Review must be completed before leaving the work setting at the end of the work period [Board Rule 217.20(d)(4)].

• 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:
• constitutes a criminal act;
• constitutes unprofessional conduct; or
• 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.