Before the Board of Registration in Nursing
The Massachusetts Medical Society wishes to express in the strongest possible terms, its concerns about the actions of the Board of Registration in Nursing in proposing regulations which, in significant part, are inconsistent with current laws and with the standards of good nursing practice which the Board is created to uphold.
A memo for the Board’s June 12, 2013 meeting states that the Board has been reviewing its regulations since 2005 with the intent of “ensuring the Board’s regulations at 244 CMR 4.00 reflected contemporary advanced nursing practice.” This introductory memo on proposed changes to the regulations, whether intentionally or inadvertently, shows a mission on the part of the Board and its staff to advance a particular vision of contemporary nursing rather than to fulfill its governmental function of overseeing the practice of nursing and implementing the statutory changes enacted by the legislature. It’s reference to 2005 shows that these changes are not prompted by legislative mandates in many cases.
The MMS is concerned that the proposed regulations ignore significant statutory requirements while pursuing a goal of furthering expanded scope of practice and diminished oversight and supervision requirements for nursing. The MMS strongly supports and values the nursing profession and the contributions of advance practice nurses to care in the Commonwealth. We accept the decisions of the legislature regarding changes to statutes governing nurse midwives and in expanded ability to sign limited documents. However, we ask that the nursing board similarly respect the actions of the legislature by enacting regulations that include the full legislative requirements governing nurses and not simply a selective adoption of language which advances the agenda of advocates for independent nursing practice at the expense of the patients of the Commonwealth.
As an initial point, the MMS is concerned that the nursing board is limiting physician supervision of nurse practitioners other than nurse midwives with little or no statutory basis for this action. Specifically, repealing regulatory requirements of physician supervision and mutually developed guidelines for the ordering of tests and therapeutics is in contradiction to MGL Chapter 112 Section 80 B governing the practice of nursing. The law states:
“Advanced practice nursing regulations which govern the ordering of tests, therapeutics and prescribing of medications shall be promulgated by the board in conjunction with the board of registration in medicine. Said promulgation shall occur only after the two boards have met, consulted and concurred on the content of such regulations.
The standards of care in the ordering of tests, therapeutics and the prescribing of medications, to which nurses in advanced practice shall be held, shall be those standards which protect consumers, and provide them with safe and comprehensive care, and shall be standards comparable to other professionals, including physicians, providing the same services.” 1
This statutory requirement is unchanged and regulations regarding ordering of tests and therapeutics should not be simply eliminated unilaterally by the Board.
New statutory requirements allowing nurses to sign documents relating to physical or mental health include significant limiting language on the application of this authority. The language makes most sense in relation to certificates relating to a patient’s status such as certifications of fitness to return to work or similar documents. The legislature specifically limited this provision by stating that it could not be interpreted to expand scope of practice. While this language is referenced in the proposed language other sections clearly contradict these provisions if the statute is meant as a basis for removing existing statutory requirements regarding tests and therapeutics. Clearly the legislative intent is for this language not to support elimination of existing regulatory standards of care in oversight of nurse practitioners but to facilitate administrative procedures.
Practice Sites and Scope
The MMS is concerned with how, in the absence of a relationship with a supervising physician, nurse practitioners will practice in areas of health care that are consistent with their training. Without requiring supervision from a physician in a related specialty, how will the Board assure that NP’s practice in a field consistent with their training?
Existing regulations address this concern with the following language:
“A nurse practicing in an institution may not practice in an expanded role until:
(a) the governing body, including the medical staff and nursing administrative staff of the institution, formally reviews and approves of the guidelines under which she proposes to practice; and
(b) a physician is designated who shall provide such medical direction as is customarily accepted in the specialty area. If there is no professional staff of nurses and physicians, the guidelines must be reviewed by the Board”
The existing regulations reference the necessary relationship between the supervising physician and the nurse in defining the specific areas of practice for the nurse. Individuals with no background in health care may become a nurse practitioner in six semester training programs. Such programs must envision their graduates practicing in team based systems with significant oversight and supervision. The Board should not be rescinding rules requiring such relationships and replacing them with simple requirements that NP’s practice consistently with their training. What does that requirement mean and how will it be enforced?
Anesthesia
The MMS wishes to support the comments of the Massachusetts Society of Anesthesiologists. Their points are well taken particularly regarding the lack of clarity in the regulations in the confusion between prescribing anesthesia and administering anesthesia. The existing regulations again reflect the law and good clinical practice. The proposed regulations leave open the possible interpretation that the nursing board believes a CRNA may administer anesthesia for which no prescription or order has been written. This clearly does not meet the standard of the law, good clinical practice or common sense. The new regulations state;” the administration of anesthesia by an NA directly to a patient does not require a prescription consistent with MGL c. 94 and s. 80H.”. To state what is not required for a nurse to administer anesthesia, without stating what is required, which is that someone has to be authorized to prescribe in order to write the order that a nurse legally administers, is leaving the Board without authority to discipline CRNA’s who make anesthesia choices without supervision. This serves the public poorly.
Medical Marijuana
The MMS is dismayed by the intent of the nursing board to involve nurses in certifying patients for medical marijuana use. The Board cites Chapter 369 of 2012 as the basis for this expansion of nurse practitioner authority. Again the Board is in direct conflict with the statute it cites. The statute does not contain the word nurse anywhere in its text. It does contain the word physician in two places which directly confer responsibility and authority for certifying patients solely to licensed physicians.
(N) “Written certification” means a document signed by a licensed physician, stating that in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. Such certification shall be made only in the course of a bona fide physician-patient relationship and shall specify the qualifying patient's debilitating medical condition(s).”
Chapter 369 passed subsequent to the law allowing nurse practitioners to sign documents. As a subsequent, more specific statute, Chapter 369 clearly applies here. In no way do nurse practitioners meet the standard set out for the protection of the public in Chapter 369. If the nursing board may interpret physicians to include nurse practitioners then why can’t the optometry board do the same or for that matter any licensing board? A licensing board may not ignore the law.
The MMS is aware of the testimony of the Mass Coalition of Nurse Practitioners to the DPH on medical marijuana which states in part: “During the 2011-2012 legislative session, MCNP filed “Global Signatory Authority” legislation to prevent the need to formally amend every statutory section in existence now; or adopted in the future, in order to continue to provide seamless care to our patients.” The stand alone bill referenced in this testimony did not pass. Provisions were included in omnibus health care reform legislation and included the requirement that this would not expand scope of practice. Regardless of the intent of the MCNP in filing the stand alone bill, no bill may limit the ability of future legislative action in an area or a public referendum. Chapter 369 rules on this matter and its language is definitive. This is basic procedural law and at the center of our democratic process. It may not be ignored.
This is true regardless of the fact that the DPH states in its regulations on medical marijuana (C) Nothing in 105 CMR 725.000 shall be construed to limit the scope of practice of a nurse practitioner pursuant to M.G.L. c. 112, s. 80I. The MMS objected strongly to this language and it must be noted that this language does not either clinically or legally justify the nursing board in its contradiction of the clear language of the law. Nothing in any other part of the DPH’s extensive advisories or the regulations themselves could be remotely construed to support the nursing board in its contravention of the law in this area. 2
Interestingly, the nursing board does reference supervising guidelines for prescribing in its medical marijuana provisions. Federal law prohibits prescribing of marijuana. Certifications are not prescriptions. How does the nursing board intend to address certification by nurse midwives who do not require prescription supervision? NP’s without prescribing privileges would have the same basis in the law that is none, that prescribing NP’s have in issuing certifications. These provisions are poorly considered in light of both the law and good public policy and should be stricken.
Nurse Midwives
The MMS is concerned that the Board has made minimal references to statutory requirements that nurse midwives must practice in a health care system and have clinical relationships with an OB-GYN. The Board defines clinical relationship in its definition section but never uses the term in the regulations. Similarly health care system is used but never defined. Regulations should clarify and specify the best practices in implementing legislative language. Clearly the legislature, in lessening supervisory requirements for nurse midwives meant to do so only for those nurse midwives practicing as part of a team within a system. The Board should honor this important public protection and clarify the meaning of acceptable health care systems and clinical relationships and what they require of licensees. Such areas should not be clarified in case law after patients are adversely affected by poor care.
Process
Finally, the MMS is concerned that the nursing board seems to have acted independently of the medicine board in developing these regulations. The MMS monitors the activities of both boards and has found no public records of policy discussions regarding these proposed regulations nor any public votes of the medicine board on these matters. This does not appear to meet the statutory requirement nor does it appear to meet standards of good and open board responsible governance.
Conclusion
The MMS urges the nursing board to confer with the medicine board on its proposed changes and to revise its proposed regulations to address the conflicts with state law that this testimony raises.
1 MGL Chapter 112 Sec 80B
2 For example, DPH REGULATIONS STATE Qualifying Patient means a Massachusetts resident 18 years of age or older who has been diagnosed by a Massachusetts licensed certifying physician as having a debilitating medical condition, or a Massachusetts resident under 18 years of age who has been diagnosed by two Massachusetts licensed certifying physicians, at least one of whom is a board-certified pediatrician or board-certified pediatric subspecialist, as having a debilitating medical condition that is also a life-limiting illness, subject to 105 CMR 725.010(J).
