At the October 2006 Texas Board of Nursing (Board or BON) meeting, the Board charged the Nursing Practice Advisory Committee (NPAC) to develop a position statement on nursing work hours and the impact of fatigue on patient safety.
In response, the NPAC initiated an online survey in early 2007 seeking feedback concerning a proposed new position statement regarding nursing work hours. The proposed position statement was written to reflect research done by the then Institute of Medicine (presently called the National Academy of Medicine) which showed that working shifts longer than 12.5 hours per day and more than 60 hours per week may cause increased incidence of nursing errors and diminished patient safety. A public hearing was held on April 18, 2007 to solicit further public comment concerning nursing work hours. Feedback obtained from the public hearing, as well as from the BON survey data, was considered by the Board concerning adoption of a proposed position statement related to nursing work hours (available on pages 4 & 5 of the January 2007 Texas Board of Nursing Bulletin). At the April 2007 Board meeting, the Board voted to send the proposed position statement back to the NPAC for consideration of the feedback received from nurses and other stakeholders. Upon further discussion, it was determined that since the BON does not regulate facilities or have purview over employment matters, the issue of nursing work hours is outside of the Board’s jurisdiction. The following document summarizes the nurses’ feedback on the proposed position statement: Nursing Work Hours Summary Document PDF. Ultimately, the proposed position statement was not adopted, but the following FAQs resulted; these FAQs discuss key licensure considerations related to mandatory overtime, consecutive shifts/work hours, and staffing ratios.
The duty of every nurse is to provide safe patient care, and this duty supersedes any employment related requirements. Once a nurse assumes duty of a patient, the nurse has a regulatory responsibility to provide safe patient care in accordance with all applicable laws, rules and regulations.
The Texas Board of Nursing (Board or BON) also has a Frequently Asked Question concerning When Does a Nurse's Duty to a Patient Begin and End? The Board has disciplined nurses in the past for issues surrounding the concept of abandonment related to a breach of the nurse’s duty to the patient. According to Board rules, all nurses must notify the appropriate supervisor when leaving a nursing assignment [Board Rule 217.11 (1)(I)], and leaving a nursing assignment without notifying the appropriate personnel is unprofessional conduct [Board Rule 217.12 (12)]. Further, all nurses must “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” [Board Rule 217.11 (1)(A)]. This means, to fully comply with Board Rule 217.11(1)(A), nurses need to determine if there are any other laws, rules, or regulations that apply to work hours or mandatory overtime from other regulators beyond the Board, i.e., regulators of the practice setting. For example, nurses working in the hospital setting should be aware of Chapter 258 of the Health and Safety Code which states that hospitals may not require a nurse to work mandatory overtime, and a nurse may refuse to work mandatory overtime in hospitals.
Following the 81st Texas Legislative Session in 2009, Section 301.356, Refusal of Mandatory Overtime, was added to the Texas Nursing Practice Act (NPA). NPA Section 301.356 references Chapter 258 of the Health and Safety Code which states that hospitals may not require a nurse to work mandatory overtime, and a nurse may refuse to work mandatory overtime in that setting. “Mandatory overtime" means a requirement that a nurse work hours or days that are in addition to the hours or days scheduled [Texas Health and Safety Code §258.002] and does not pertain to situations when a nurse’s relief does not arrive on time following his or her scheduled shift. NPA Section 301.356 makes it clear that hospital nurses refusing to work mandatory overtime does not constitute patient abandonment or neglect. Thus, refusal by a nurse to work mandatory overtime in the hospital setting is not a violation of the nurse’s duty to his or her patients that could result in disciplinary action from the BON. Additionally, nurses who refuse to work overtime, as authorized in Senate Bill 476 from the 81st Legislative Session, may be able to invoke protections against employer retaliation as outlined in NPA Section 301.352, Protection for Refusal to Engage in Certain Conduct. A hospital may however require a nurse to work mandatory overtime in disaster and emergency situations [Texas Health and Safety Code §258.004]. Nurses who practice in hospital settings may wish to contact the Texas Health and Human Services Commission (HHSC), the agency with regulatory authority over Hospital Licensing and Regulation, at (512) 834-6648 for specific guidance related to the regulations for the official nurse staffing policy and plan required by SB 476 to be created by the governing body of a hospital.
While the BON does not have authority in employment situations, there are protections in both the NPA and Board Rule 217.20, Safe Harbor Nursing Peer Review and Whistleblower Protections, for a nurse who invokes safe harbor in good faith because he or she believes acceptance of the assignment, e.g., additional work hours/overtime, may result in a breach of the nurse’s duty to a patient(s) and be a violation of the NPA or Board rules. Also, Section 258.005 of the Texas Health and Safety Code prevents a hospital from suspending, terminating, or otherwise disciplining or discriminating against a nurse who refuses to work mandatory overtime. If adverse employment action was taken against a nurse for refusing to work mandatory overtime¬¬ or invoking safe harbor in good faith, then the nurse may choose to seek private legal counsel.
If a nurse has reason to believe that a facility is failing to abide by the regulatory requirements applicable to that facility and is therefore jeopardizing patient safety, e.g., unsafe work hours for nurses, the nurse may make an optional written report to the appropriate licensing board or accrediting body as addressed by NPA Section 301.4025, Optional Report by Nurse. For example, the Texas Health and Human Services Commission has authority over Hospital Licensing and Regulation.
The Texas Board of Nursing (Board or BON) licenses and regulates nurses in the State; the Board does not have purview over facility operations or most facility policies or procedures. As such, the Board does not have any jurisdiction over employment related matters including: work hours, scheduling, staffing, or extended work hours. The Board does, however, have applicable laws and rules that pertain to this topic as it relates to a nurse’s duty to patients. Board Rule 217.11 Standards of Nursing Practice, outlines the minimum standards for safe nursing practice at all levels of licensure, including the requirement that all nurses must implement measures to promote a safe environment for clients and others [§217.11(1)(B)] and accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse’s educational preparation, experience, knowledge, and physical and emotional ability [§217.11(1)(T)].
In 2003, The Institute of Medicine (IOM), now known as the National Academy of Medicine, made recommendations that nursing work hours be limited to no more than 12.5 hours in a 24-hour period, 60 hours in a 7-day period, or 3 consecutive days of 12-hour shifts. While attempting to identify the specific number of hours to work to ensure patient safety, the IOM suggested the increased number of hours worked results in fatigue, and prolonged wakefulness correlates to errors or near-errors by healthcare providers. Each individual nurse must do a self-assessment to determine the number of hours he or she can safely provide nursing services. Every nurse has a duty to recognize when he or she is unfit to practice secondary to physical, mental, and/or emotional fatigue [Board Rule 217.11 (1)(T)]. Nursing judgment and the provision of safe nursing care may be impaired if a nurse is physically, mentally, or emotionally exhausted, which could lead to nursing errors. Board Staff recommend reading Position Statement 15.14 (Duty of a Nurse in any Practice Setting) because it uses a landmark court case to demonstrate a nurse’s duty to patients is to promote patient safety, and this duty supersedes any physician order or facility policy. Also, Position Statement 15.6 (Board Rules Associated With Alleged Patient "Abandonment") helps differentiate between employment issues and licensure issues and outlines that ‘refusing to work additional shifts’ is not typically a regulatory matter.
The American Nurses Association has information on their website concerning Nurse Fatigue and a Position Statement (Addressing Nurse Fatigue to Promote Safety and Health: Joint Responsibilities of Registered Nurses and Employers to Reduce Risks) that may serve as additional resources for nurses considering work hours and nurse fatigue.
The Texas Board of Nursing (Board or BON) has no authority over staffing ratios, a workplace/employment matter; however, the Board does have applicable regulations that relate to a nurse’s duty to patients. The Texas Nursing Practice Act (NPA) and Board rules and regulations are written broadly so they can be applied by all nurses (LVNs, RNs, & APRNs) in any practice setting. Board Rule 217.11, Standards of Nursing Practice, provides the minimum standards nurses must meet in accepting any assignment, including situations involving inadequate staffing, specifically:
- §217.11(1)(B) requires the nurse to maintain a safe environment for the patient (this requirement supersedes any agency policy, directive from a supervisor, or physician’s order);
- §217.11(1)(T) holds the nurse accountable to accept only those assignments that are within the nurse's educational preparation, experience, and knowledge, as well as his or her physical and emotional ability (if a licensed nurse accepts an assignment, he or she is responsible for the care delivered);
- §217.11(1)(S)applies to nurses, e.g., charge nurses and managers, who make assignments to others. This standard is the "companion" standard to §217.11(1)(T), as it requires the nurse who is making assignments to take into account the educational preparation, experience, knowledge, and physical and emotional abilities of the individual to whom the assignments are made (this does not mean other nurses are working under the supervisor's license or that the supervisor is responsible for every aspect of care delivered by other staff nurses—each nurse is individually responsible for the assignments they accept); and
- §217.11(1)(U)holds nurses responsible to supervise and oversee the nursing care provided by others for whom the nurse is professionally responsible.
Further, Position Statement 15.14, Duty of a Nurse in any Practice Setting, uses a landmark court case to demonstrate a nurse’s duty to patients and the promotion of patient safety
While the Board does not have purview over employment issues, specialty nursing organizations exist to serve their members and may be able to provide nurses with additional guidance related to their practice setting. Nurses with employment issues may wish to contact nursing specialty organizations and associations related to their area of practice as these groups may have more specific guidance on nurse to patient ratios for a given specialty area.
During the 81st Legislative Session in 2009, Senate Bill 476 was enacted, changing the Texas Health and Safety Code. The legislature acknowledged research conclusions that demonstrate adequate nurse staffing is directly related to positive patient outcomes. As a result, hospitals were required to adopt, implement, and enforce a written nurse staffing policy to ensure adequate numbers of nurses with skill levels to meet the level of patient care needed. Nurses practicing in hospitals may visit http://www.dshs.texas.gov/facilities/hospitals/laws-rules to read more about hospital licensing and regulation or may wish to contact the Texas Department of State Health Services (DSHS) health facility licensing and complaint line at 1-888-973-0022 if they believe the hospital is not complying with the nurse staffing policy requirement and/or putting patient’s in danger for any reason (including unsafe staffing levels). To view Senate Bill 476 and review the specific changes that were made to the Texas Health and Safety Code, please go to http://www.legis.stte.tx.us/tlodocs/81R/billtext/html/SB00476F.HTM.
If a nurse believes that he or she is being asked to accept an assignment that would cause the nurse to violate the NPA or Board rules, especially any of the minimum standards of practice from Board Rule 217.11 (whether due to unsafe nurse to patient ratios or other reasons), the nurse may wish to review the NPA Section 301.352, Protection for Refusal to Engage in Certain Conduct. Also, employers who regularly employ, hire, or contract the services of at least 8 nurses are required to have nursing peer review—for nursing peer review of an RN, at least 4 of the 8 nurses employed/hired/contracted must be RNs [Texas Occupations Code Section 303.0015]. This requirement for nursing peer review includes safe harbor nursing peer review, for when a nurse is requested or assigned to engage in conduct that the nurse believes violates his/her "duty to a patient". An employer required to have nursing peer review must have policies informing nurses of the procedure for making a request for safe harbor within that employment setting [Texas Occupations Code Section 303.005 (i); Board Rule 217.20 (h)(1)]. Board Rule 217.20 is the Board’s rule concerning safe harbor nursing peer review, and §217.20(e) outlines the requirements the nurse must meet in order to secure the protections, what the protections are, and where they are listed in the law [Texas Occupations Code Section 303.005]. While the BON does not have authority over workplace issues, there are protections in both the NPA and Board Rule 217.20 for a nurse who invokes safe harbor in good faith. If adverse employment action is taken against a nurse, then the nurse may choose to seek private legal counsel.
Nurses in my facility are often required to float from their home unit to other care units where they do not have clinical competence and/or clinical experience. What is the duty of the nurse when it comes to floating to different clinical units (i.e., adult, pediatric, ER, etc.)? Can a nurse invoke safe harbor? If so, how do nurses invoke safe harbor?
The Nursing Practice Act (NPA) and Board Rules are written broadly to apply to nursing practice in any setting. Although the Board of Nursing (Board or BON) has no authority over workplace matters, such as floating or staffing ratios, nurse staffing was addressed in SB 476 during the 81st Texas Legislative Session in 2009. As a result of the bill, new chapters (Chapters 257 and 258) were added to the Texas Health and Safety Code concerning “Nurse Staffing” and “Mandatory Overtime for Nurses Prohibited” respectively.
The changes created by SB 476 are applicable to you if you work in a hospital and, among other things, require hospitals to have a nurse staffing committee, policy, and plan to ensure that an adequate number and skill mix of nurses are available to meet the level of patient care needed. Further, the staffing plan must include a method for adjusting the staffing plan for each patient care unit to provide staffing flexibility to meet patient needs and a contingency plan when patient care needs unexpectedly exceed direct patient care staff resources. Floating ...
is a staffing strategy that involves sending a nurse from his/her permanently assigned unit, or home unit, to a unit that needs staff” (Good & Bishop, 2011). Floating can be the strategy hospitals use to comply with the law.
Nurses are required to "know and conform" to the NPA and Board Rules, both of which have the force of law for licensed nurses (LVN, RN, or APRN). Nurses that may be required to float to assist another unit and nurses whom are confronted with a potentially unsafe practice situation should be familiar with the Standards of Nursing Practice, found in Board Rule 217.11. There may be a variety of reasons that may lead an employer to request a nurse practicing in Texas to change their primary area of practice. Transitioning from one area of practice to another, especially an area the nurse is unfamiliar with, may affect the nurse's ability to provide safe and effective nursing care that complies with the Nursing Practice Act and Board Rules.Board Staff recommend review of Board Rule 217.11 (Standards of Nursing Practice) taking into consideration certain portions of the rule that apply to this situation, including all nurses must:
- §217.11(1)(A): 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.
- §217.11(1)(B): maintain a safe environment for the patient. This requirement supersedes any agency policy or physician order; also see Board Position Statement 15.14: Duty of a Nurse in Any Practice Setting.
- §217.11(1)(G): obtain instruction and supervision as necessary when implementing nursing procedures or practices.
- §217.11(1)(H): make a reasonable effort to obtain orientation/training for competency when encountering new equipment and technology or unfamiliar care situations.
- §217.11(1)(P): collaborate with the patient and other members of the health care team in the patient’s interest. In situations where nurses are floating, working double or extra shifts, taking charge duties, or working short-staffed, clear communication between staff and supervisors is essential to manage patient care and decrease conflicts in the work setting. A nurse may also seek opportunities in his or her practice setting to become involved with committees or other facility-based efforts in developing staffing strategies that comply with the nurse’s scope of practice and that balance the needs of the facility with the requirements for safe patient care.
- §217.11(1)(S): supervise other nurses to make assignments that take into account the educational preparation, knowledge, skills, physical, mental, and emotional abilities of the nurses. This applies to charge nurses or nurses who are in management positions who make assignments. However, this does not mean other nurses are working “under the supervisor's license”, or that the supervisor is responsible for every aspect of care delivered by other staff nurses.
- §217.11(1)(T): accept only those assignments that are within their education, training, experience, knowledge, and physical and emotional abilities. If a nurse accepts an assignment, then the nurse is responsible for his/her nursing actions and care delivered.
- §217.11(1)(U): be held responsible to oversee the nursing care provided by others for whom the nurse is professionally responsible.
Additionally, when being asked to transition into a new practice setting, there is a Practice-Guideline that provides more information for consideration: Guidelines for Transitioning of the Experienced Nurse back into Clinical Practice or into a New Practice Setting.
When a floating to an unfamiliar practice setting, it is important to critically evaluate the assignment in question. For instance, having to float to a different unit in and of itself may NOT be a reason to request safe harbor, unless there are additional patient safety concerns. The details of an assignment in this float unit should be compared to that of an assignment in nurse’s home unit or practice settings in the nurse’s past experience. It may be the case that the specifics of the new assignment are not unfamiliar to a nurse and therefore may not carry the same level of concern for patient safety as would an assignment with new or unfamiliar responsibilities, therefore the nurse can accept the assignment.
However, if a nurse believes he/she is being asked to accept an assignment that would cause the nurse to violate the NPA or Board rules, the nurse will want to refer to NPA Section 301.352 or the Frequently Asked Questions about Safe Harbor Nursing Peer Review which address the nurse's right to refuse an assignment.
If a nurse has repeated concerns about staffing patterns or is being floated on a daily basis and there is potential for patient harm, the nurse may wish to consider speaking with the nurse manager for collaborative problem solving before an untoward event occurs. It is helpful to utilize some of the information required by the safe harbor documentation to initiate discussion surrounding the concerns about floating to areas outside of the nurse’s clinical expertise and/or area of competence. Board staff recommend that nurses actively engage in collaborative problem solving, generating ideas and solutions that promote flexible staffing without jeopardizing patient safety or a nurse’s license. Board staff also recommend consulting nursing literature for published evidence-based staffing strategies that promote patient safety.
If a nurse practices in a hospital, he/she may wish to contact the Texas Department of State Health Services (DSHS) about the regulations for the nurse staffing policies and plans that took effect on September 1, 2009. The DSHS Healthcare Facilities complaint line for general hospital complaints is 888-973-0022. The contact number for general hospital licensing information is available at https://dshs.texas.gov/facilities/contact.aspx.Nursing specialty organizations, such as the Texas Nurses Association at 512-452-0645 or https://www.texasnurses.org, can also offer additional information and advocacy related to nurse staffing. While the Board cannot address employment issues, specialty nursing organizations exist to serve their members and may be able to provide nurses with additional guidance. The Texas Hospital Association at www.tha.org or 512-465-1000 may provide nurses and hospitals with additional resource information.
Good, E. & Bishop, P. (2011). Willing to walk: A creative strategy to minimize stress related to floating. The Journal of Nursing Administration, 41(5), 231-234. Retrieved from https://www.nursingcenter.com/pdfjournal?AID=1161969&an=00005110-201105000-00009&Journal_ID=54024&Issue_ID=1161688
There is no routine answer to the question, “When does the nurse’s duty to a patient begin?” A nurse's duty is not defined by any single event such as clocking in, or taking report. From a Board of Nursing standpoint, the focus is on the relationship and responsibility of the nurse to the patient(s), not to the nurse's employer or employment.
The difference between employment and licensure issues can be confusing for many nurses and supervisors. It is important to note that resigning from a nursing position, whether there is advance notice or not, is distinctly different from leaving a nursing assignment. For example, a nurse notifies his or her employer that he or she is quitting a job at the end of an assigned shift. In keeping with the nurse’s duty to promote patient safety, this nurse has an obligation to complete his/her agreed assignment during a scheduled shift and to ensure a patient hand-off that promotes continuity of care. Position Statement 15.6, Board Rules Associated with Alleged Patient Abandonment, explains that resigning from a position is typically an employment issue rather than a licensure issue, provided the nurse does not leave during the time he/she has responsibility for patients. If the employer has a policy that "requires a two-week notice," resigning without advance notice is still considered an employment issue rather than a violation of the Nursing Practice Act (NPA) or Board Rules and Regulations. Abruptly leaving an assignment could be a licensure-related issue because it would not promote continuity of care and could pose an unnecessary risk of harm to patients.
It should also be noted that Texas Administrative Code, Rule §217.12 Unprofessional Conduct regarding leaving a nursing assignment does not apply to the situation where the nurse completes his or her scheduled shift, and then turns in notification of job resignation.
All nurses, regardless of practice setting, position, title or role, are required to adhere to the NPA and other statutes, as well as the Board Rules. Two of the main rules that relate to nursing practice are Texas Administrative Code, Rule §217.11 Standards of Nursing Practice, and Texas Administrative Code, Rule §217.12 Unprofessional Conduct.
The standard that serves as the foundation for all other standards is Rule 217.11(1) (B) "...maintain a safe environment for clients and others." This standard supersedes any physician order, facility policy, or administrative directive. The concept of the nurse's duty to maintain client safety also serves as the basis for behavior that could be considered unprofessional conduct by a nurse.
BON Position Statement 15.14, Duty of a Nurse in Any Setting, explains the nurse's duty that was established by a landmark case, Lunsford v. Board of Nurse Examiners. As the case of Lunsford points out, when a nurse knows, or should have known that a situation potentially places a patient at risk of harm, the nurse has a duty to intervene. The nurse's knowledge based on educational preparation, experience, and licensure establishes that the nurse understands the minimum standards of care and has the ability and duty to recognize potentially harmful situations for the patient.
This is why the nurse's duty does not incur solely based on a nurse being "assigned" to provide nursing care to a patient. A nurse who has knowledge that a situation places a patient at risk of harm has a duty to the patient or potential patient, as in Lunsford.
As stated above, a nurse’s duty does not incur solely based on a nurse being “assigned” to a patient; however, there are standards within Board Rule 217.11 that do address nursing assignments and relate to a nurse’s duty in accepting an assignment. Board Rule 217.11(1)(S) relates to nurses who supervise other staff. This standard requires nurses in supervisory positions to "make assignments to others that take into consideration client safety and which are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the persons to whom the assignments are made." Likewise, staff nurses are required to accept assignments within the nurse's educational preparation, experience, knowledge, and physical and emotional ability Rule 217.11(1) (T). The standards do not exist or apply in isolation, but complement each other; thus, all applicable standards should be considered by a nurse in determining the most appropriate course of action.
The Texas Nursing Practice Act (NPA) and Texas Board of Nursing (Board or BON) Rules are written broadly so they can apply to nursing practice in any setting. As such, the BON does not provide an all-purpose list of tasks that every nurse can perform, nor does the Board provide step-by-step procedures regarding how certain tasks are to be carried out by a nurse.
It is up to each individual nurse to use sound professional judgement when accepting a given assignment and when performing a given activity/task/procedure.
Board Rule 217.11 Standards of Nursing Practice , is an important reference for nurses in making a scope of practice determination as it outlines the minimum standards of nursing practice applicable to all levels of licensure (LVN, RN, and APRN). The specific standards that apply to all nurses in nearly every situation include:
- “(all nurses must) 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” [§217.11(1)(A)];
- "(all nurses must) implement measures to promote a safe environment for clients and others” [§217.11(1)(B)]; and
- “(all nurses must) accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse’s educational preparation, experience, knowledge, and physical and emotional ability” [§217.11(1)(T)].
Additional standards of nursing practice outlined within Board Rule 217.11 will also likely apply, depending on the situation at hand. When making a scope of practice decision, a nurse should, among other things, reflect upon whether or not he/she can uphold the Standards of Nursing Practice when accepting a particular assignment and/or performing a particular activity/task/procedure.
In all cases, the definition of nursing at the LVN and RN level excludes ‘acts of medical diagnosis and the prescription of therapeutic or corrective measures’ [NPA Section 301.002 (2) & (5)]. Each nurse is individually responsible for ensuring that he/she does not exceed the limits of his/her scope of practice and that appropriate orders are in place for acts that go beyond the practice of nursing.
The Scope of Practice Decision-Making Model (DMM) is a tool to assist individual nurses with scope of practice determinations. The DMM was developed by Board Staff to assist nurses in making sound scope of practice decisions. The DMM contains eight questions and is intended to be used in sequence, beginning at the top with question number one. If a nurse is able to progress through the model without reaching a Stop Sign, he/she will be guided to proceed with the activity/task/procedure/role/intervention under consideration. Conversely, if a nurse reaches a Stop Sign at any point, he/she should consider the activity or intervention in question beyond (or outside) his/her individual scope of practice. The DMM also includes two pages of supplemental information and resources to assist nurses to answer each question in the model. Illustration of two examples demonstrating how to use the DMM is available in the July 2019 Texas Board of Nursing Bulletin (pages 4 – 8).
Some procedures or acts may constitute a delegated medical act. Chapter 193 of the Texas Medical Board Rules discusses standing delegation orders, and BON Position Statement 15.11 discusses “Delegated Medical Acts”. Performance of a delegated medical act by a nurse does not diminish the nurse’s responsibility to adhere to the Board's Standards of Nursing Practice [§217.11]. Nurses function under their own licenses and assume responsibility and accountability for quality, safe care in accordance with all applicable laws/rules/regulations [Board Rule 217.11 (1)(A)]; nurses do not practice “under the protections of a physician’s license”. Every nurse has a duty to promote patient safety, and this duty to patients supersedes any physician’s order or facility policy. In other words, neither a physician's order, facility policy, nor a directive from a supervisor, can supersede a nurse's duty to comply with the NPA and Board rules in the promotion of patient safety.
If a nurse believes he/she is being asked to accept an assignment that would cause him/her to violate the NPA or Board rules, then he/she may refuse to engage in an act that would constitute grounds for reporting the him/her to the Board if the nurse notifies the person making the assignment at the time of the refusal that the reason for refusing the assignment is that the act is a violation of the NPA or Board rules [NPA Section 301.352]. Also, when a nurse is requested or assigned to engage in conduct that he/she believes violates his/her “duty to a patient", the nurse may consider invoking safe harbor. More information about safe harbor is available in the BON’s Safe Harbor Nursing Peer Review FAQs and in Board Rule 217.20.Revised: 2021
Nurses have a duty to report patient information, including mental health information, to members of law enforcement, a patient's family and others when a patient is a serious danger to himself or others.
In January 2013, the U.S. Department of Health and Human Services - Office for Civil Rights issued clarification regarding the Health Insurance Portability and Accountability Act (HIPAA) titled, Message to Our Nation's Health Care Providers. The message can be found at https://www.hhs.gov/hipaa/for-professionals/index.html
I currently work in an ICU. I had an opportunity to care for a patient/nurse (who was a nurse at another facility) who overdosed. She was transferred, when stable, to a treatment center by court order. I was told we cannot report her to the board due to HIPAA. My question is, "How do we plan to handle this type of incident in the future?" "Will there be any specific changes made to address problems like this in the future?" I understand with the renewal of our license we must answer the question of treatment for use of "alcohol or any other drug." But if there is no report of her being in the hospital for treatment, due to HIPAA, it's possible that she may not answer the question truthfully. Can you please help with these questions. I appreciate your time.
Whether a nurse is admitted for an overdose of a substance, or admitted secondary to some type of accident related to being under the influence of any mind-altering substance, the answer would remain the same.
The license renewal form for both LVNs and RNs includes a question that asks "In the past 5 years have you been addicted or treated for the use of alcohol or any other drug?” A nurse or any other person who is treated for an overdose or any kind is not necessarily suffering from a substance "addiction" and would not, therefore, need "treatment" for an addiction. There could be a psychological issue underlying the overdose, such as depression, which would also not require the nurse to reveal anything to the Board since one of the other renewal questions asks "Are you currently suffering from any condition for which you are not being appropriately treated that impairs your judgment or that would otherwise adversely affect your ability to practice nursing in a competent, ethical and professional manner?” Even if the nurse in question was "transferred for treatment" related to an overdose, he/she would still not be reportable because they are a patient in this situation---not a practicing nurse.
As with the nurse admitted due to an overdose on a substance, a nurse admitted for treatment as a patient for any reason secondary to being found "under the influence" is also not reportable to the board. Should the nurse's conduct lead to a criminal conviction, including an adjudicated or probated sentence, this would be self-reportable (or could be reported by another entity, such as law enforcement authority). A question regarding criminal conduct is also on the renewal form. In addition, the Board has Disciplinary Sanction Polices on "Substance Use Disorders and Other Alcohol and Drug Related Conduct” as well as "Lying and Falsification" that may be helpful for you to review.
The plan for the future will be to continue to comply with the Federal HIPAA law that mandates adherence to certain patient privacy rights in relation to a person's medical records and information. The BON would have no grounds under Nursing Practice Act Sections 301.401 to take action against a nurse who is being treated as a patient for any health problem.
Any nurse who falsifies information relating to the practice of nursing or nursing licensure runs the risk of being " investigated for possible violations of the NPA. Nurses face stiffer sanctions from the Board when it is discovered that a nurse falsified information to the BON. You may wish to review the Board's various Disciplinary Sanction Policies (4 in total) that explain why the Board is concerned about certain actions/behaviors of nurses and how the Board typically acts in these situations.
No. The Texas Board of Nursing (Board or BON) does not require CPR certification for licensure renewal; however, employers may have specific requirements for maintaining current CPR status as a condition of employment.
Nurses should use their professional judgment when deciding whether or not to maintain current CPR certification, taking into consideration whether they are employed in patient care settings in which CPR may be necessary to resuscitate and stabilize a patient’s condition [Board Rule 217.11(1)(M)]. Nurses have a responsibility to maintain continued competency in nursing practice through educational opportunities that promote individual professional growth [Board Rule 217.11(1)(G), (1)(H), & (1)(R)].
Yes. All nurses have an obligation or duty to initiate CPR for clients who require resuscitative measures [Board Rule 217.11(1)(M)]. In all healthcare settings, nurses must initiate CPR immediately in the absence of a client’s do-not-resuscitate/out of hospital do-not-resuscitate order. A do-not-resuscitate/out of hospital do-not-resuscitate order is a medical order that must be given by a physician; and, in the absence thereof, it is generally outside the standards of nursing practice to determine that CPR will not be initiated. The initiation of CPR does not require a physician’s order in the absence of do-not-resuscitate/out of hospital do-not-resuscitate order.
In general, the Texas Nursing Practice Act and Board rules and regulations establish a nurse’s duty to initiate CPR and require every nurse, regardless of expertise, specialty, or practice setting, to provide safe and effective care for clients [Board Rule 217.11(1)(B)]. BON licensure laws and rules do not specifically require a nurse to have a current CPR card in order to perform CPR or utilize other life-saving interventions for a client. Instead, the minimum standards of nursing practice addressed in Board Rule 217.11(1)(B)&(M) require a nurse to “implement measures to promote a safe environment for clients and others” as well as “institute appropriate nursing interventions that might be required to stabilize a client’s condition and/or prevent complications.”
In the absence of a do-not-resuscitate/out of hospital do-not-resuscitate order from a physician, all nurses should initiate CPR immediately in a witnessed arrest, regardless of healthcare setting. CPR should continue and the physician should be notified of the client’s change in condition, to include the current life-saving interventions being provided to the client.
Yes, Position Statement 15.20, Registered Nurses in the Management of an Unwitnessed Arrest in a Resident in a Long-Term Care Facility. The purpose of this position statement is to provide recommendations and guidance to clarify issues for compassionate end-of-life care for residents residing in long-term care facilities only. This position statement is specific to long-term care facilities and is not to be construed as applicable to other healthcare settings in which nurses are employed.
In the case of an unwitnessed resident arrest without DNR orders in a long-term care facility, determination of the appropriateness of CPR initiation should be undertaken by the registered nurse through a resident assessment; and, interventions appropriate to the findings should be initiated. After assessment of the resident is completed and appropriate interventions are implemented, documentation of the circumstances and the assessment of the resident in the medical record are required.
Board Rule 217.11(1)(A) requires all nurses to know and conform to the Texas Nursing Practice Act and Board rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurses’ current area of nursing practice. Additionally, nurses should know and follow their facility, agency or employer’s policies.
The American Heart Association recommends that all clients receive CPR immediately unless attempts at CPR would be futile, such as when clients exhibit obvious clinical signs of irreversible death. Obvious clinical signs of irreversible death include decapitation (separation of head from body), decomposition (putrefactive process; decay), dependent lividity (dark blue staining of the dependent surface of a cadaver, resulting from blood pooling and congestion), transection, or rigor mortis (body stiffness that occurs within two to four hours after death and may take 12 hours to fully develop).
No. The Board of Nursing does not have purview over physician practice, employment settings or the laws regulating the pronouncement of death in Texas. Additional information on Texas regulations regarding pronouncement of death may be found in the Texas Health and Safety Code Chapter 671.
Yes. The decision to initiate CPR for all nurses should be a spontaneous clinical decision and nursing intervention for a client in cardiac or respiratory arrest. Delay in initiating CPR can be critical to the outcome of CPR. CPR should not be delayed to review the client’s medical record or chart in search of physician orders for do-not-resuscitate/out of hospital do-not-resuscitate documentation. Employers and nurses should take a proactive approach to ensure that healthcare setting policies are in place to ascertain a physician’s order for resuscitative status upon admission. Additionally, the care plan should be updated, as appropriate, if there are changes to the physician’s order concerning resuscitation status of the client. Easy access to the most up-to-date physician’s order regarding resuscitation status is imperative.
Texas statutes, rules and regulations outside of the Board’s jurisdiction govern who can pronounce death, and only those legally authorized to pronounce death may do so (i.e., physician, justice of the peace). Texas regulations regarding pronouncement of death may be found in Texas Health and Safety Code Chapter 671 and Texas Administrative Code Chapter 193 (Texas Administrative Code, Title 22, Part 9, Chapter 193.18)
Texas Health and Safety Code Chapter 671 requires the facility, institution, or entity to have a written policy that is jointly developed and approved by the medical staff or medical consultant and the nursing staff, specifying under what circumstances an RN can make a pronouncement of death in order for an RN to pronounce death.
An RN and/or an APRN can pronounce death when a patient is not receiving artificial means of life support and has a properly documented do-not-resuscitate/out of hospital do-not-resuscitate physician’s order if the employer has policies and procedures in place to acknowledge that the RN and/or APRN may pronounce death. An RN may not sign a death certificate under any circumstances. However, an APRN may sign a death certificate under the following circumstances:
- The patient has executed a written certification of terminal illness, has elected to receive hospice care, and is receiving hospice services from a qualified hospice provider; or
- The patient is receiving palliative care.
No. The Board of Nursing Position Statement 15.2 addresses the Role of the Licensed Vocational Nurse in the Pronouncement of Death. Licensed vocational nurses (LVNs) do not have the authority to legally determine death, diagnose death, or otherwise pronounce death in the State of Texas. Regardless of practice setting, the importance of initiating cardiopulmonary resuscitation (CPR) in cases where no clear Do Not Resuscitate (DNR) orders exist is imperative. The Board of Nursing (BON) has investigated cases involving the failure of a LVN to initiate CPR in the absence of a DNR order.
In addition to the current American Heart Association Guidelines for CPR & Emergency Cardiovascular Care, the Board website (www.bon.texas.gov) may provide assistance and serve as a resource in developing policies and procedures to further support safe practice with regard to CPR. The Board recommends employers consider the following references when establishing policies and procedures in the healthcare setting:
- Board Rule 217.11, Standards of Nursing Practice
- Position Statement 15.27, The Licensed Vocational Nurse Scope of Practice
- Position Statement 15.28, The Registered Nurse Scope of Practice
- Position Statement 15.14, Duty of a Nurse in Any Practice Setting
- Position Statement 15.2, The Role of the Licensed Vocational Nurse in the Pronouncement of Death
- Position Statement 15.20 Registered Nurses in the Management of an Unwitnessed Arrest in a Resident in a Long Term Care Facility
- Frequently Asked Question, RN Pronouncement of Death
- Texas Administrative Code Chapter 193 (22 TAC §193.18, Pronouncement of Death)
- Texas Health and Safety Code Chapter 671
I will be graduating from a vocational nurse training program in a few months, and am beginning to seek out employment options once I graduate. I am attracted to the area of home health nursing, and I wondered if LVNs can work in home health settings? (Note: The same answer applies to graduates of registered nurse training programs).
As a newly graduated LVN (or RN), I am interested in home health nursing. Should I work in this environment as a new nurse?
When you graduate from your vocational training program or your professional nursing program, you will likely be eligible for a temporary permit to practice as a Graduate Vocational Nurse (GVN) or Graduate Nurse (GN). Board Rule 217.3 prohibits GVNs and GNs from working in "independent practice settings", which includes home health settings.
Once you receive confirmation from the BON that you have passed your NCLEX-PN (or NCLEX-RN) licensure exam, you will be entitled to hold yourself out as a Licensed Vocational Nurse (LVN) or Licensed Registered Nurse (RN) as applicable, with all of the privileges and responsibilities that go along with each license. The Board strongly discourages newly licensed nurses from accepting employment in any independent living environment setting until the new nurse achieves twelve (12) to eighteen (18) months of nursing experience in an acute health care setting (such as a hospital).
The Board believes that the newly licensed nurse (LVN or RN) needs adequate time to apply newly learned nursing knowledge and clinical skills, as well as time to develop clinical judgment and decision-making skills. In addition, the Board believes that this process occurs most effectively in a structured health care environment where resources and supervision are immediately available to the new nurse. Once licensed, you are required to “know and comply with” the Nursing Practice Act (NPA) and Board Rules, as the content of each has the force of law with regard to nursing practice in Texas. The NPA and rules may be viewed in their entirety on this site.
Board Rule 217.11 Standards of Nursing Practice is the heart of nursing practice and applies to all nurses. Specifically, Board Rule 217.11(1)(B) requires nurses to always maintain client safety and Board Rule217.11(1)(T) requires nurses to accept only those assignments that are commensurate with the nurse’s education, licensure, experience, and abilities. If a newly-licensed nurse decides to work in home health, and is subsequently reported to the Board for possible violations of the Board Rules, the nurse would likely be asked to explain his/her rationale for accepting employment in a home health setting, particularly when the Board clearly cautions new nurses against working in this environment.
I am answering the question on my licensure application: Have you used your nursing knowledge, skills and abilities within the past four (4) years? I'm not sure what this means, can I include volunteer positions or caring for a disabled family member? How does the Board of Nursing (BON) define "use of nursing knowledge, skills, and abilities”?
The practice of nursing requires specialized judgment and skill, which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved professional or vocational nursing program of study [NPA Section 301.002(2)&(5)]. The practice of nursing is not limited to the traditional roles, such as providing hands on, direct patient care, or teaching in a nursing program, or working as a nurse administrator. There are many more activities that nurses perform that comprise nursing practice, that are not in these traditional roles.
The practice of nursing involves the nurse’s use of specialized knowledge, skills, and abilities acquired from nursing education to perform a task, an activity, or to complete an assignment or job, regardless of whether or not compensation is received. Whether a nurse is in a paid or volunteer role, the nurse must know and comply with the Nursing Practice Act, Board Rules and Regulations, and any laws, rules, or regulations applicable to the nurse's area of practice [Board Rule 217.11(1)(A)]. A nurse is responsible to maintain professional boundaries and confidentiality in relation to the nursing care being provided [Board Rule 217.11(1)(J)&(E)].
Nurses use their specialized nursing knowledge, skills and abilities for example, when a nurse is in the role of a nurse researcher performing health related research in support of improved practice and patient outcomes. Other examples of non-traditional nursing roles include health education, utilization review, health information technology, policy and rule writing, consulting, and writing for nursing publications such as journal articles, books or continuing nursing education programs.
If a nurse uses their knowledge, skills and abilities acquired from a nursing program, then the nurse is said to be practicing nursing and should be licensed as a nurse, regardless of whether or not the employment position uses the title of nurse or requires a nursing license. The Board does not have regulatory purview over employment practices and most policies and procedures.
There is not a requirement for a specific number of hours of nursing practice within a licensure cycle for the LVN or the RN to maintain active licensure status. Area of practice is defined as "any activity, assignment, or task in which the nurse utilized nursing knowledge, judgment, or skills during the licensing period" and may provide additional guidance in answering this licensure application question. Please be aware that the advanced practice registered nurse is required to have a minimum of 400 hours of current practice within the preceding two years of practice that must meet the requirements of the Board’s rules in Chapter 221, related to Advanced Practice Registered Nurses.
- Nursing Practice Act, Section 301.002 (2) & (5). Nursing Practice Act
- Texas Board of Nursing Rule 217.11 (1) (A) & (1) (E) & (1) (J). Standards of Nursing Practice
- Texas Board of Nursing Rule 216.1 (4). Continuing Competency
- Texas Board of Nursing Rule 221.8. Advanced Practice Nurses
The newly licensed nurse, as a novice practitioner, is inexperienced and not fully integrated into his/her nursing role and setting, thus undergoing a transitional phase into practice. Based on this belief, the Board provides the following guidance to newly licensed LVNs or RNs:
- It is recommended that a newly licensed nurse not practice in independent settings, such as group homes, assisted living facilities and home or school health, where access to a clinical supervisor is limited, for a period of 12-18 months post-licensure. This allows the newly licensed nurse sufficient practice experience in more structured settings and the opportunity to assimilate knowledge learned in school consistently into practice.
- The Board believes it is essential for newly licensed nurses to seek and receive direction, supervision, consultation and collaboration from experienced nurses during the transition into nursing practice. In any practice setting where newly licensed LVNs and RNs are employed, experienced nurses should be willing to supervise and mentor novice nurses.
- Direct supervision should be continued for a period of six (6) months or, if agreed upon by the newly licensed nurse and the supervising nurse, a lesser period of time when appropriate. Competence to practice without direct supervision should be mutually determined by the newly licensed nurse and the supervising nurse. This competency should be both demonstrated and supported by documentation.
- Once the above mentioned period of direct supervision has been completed, the newly licensed LVN must ensure that he or she has the appropriate continued supervision as required by their level of licensure. Keep in mind that, regardless of the number of years of experience, the LVN has a directed scope of practice and must have a registered nurse, advanced practice registered nurse, physician, physician’s assistant, dentist or podiatrist as a supervisor of his or her clinical nursing practice [NPA Sections 301.002(5) and 301.353; Board Rule 217.11(2)].
- It is recommended that a newly licensed nurse not hold a position as a charge nurse or nurse manager for a period of six (6) months, unless a lesser time period is mutually agreed upon by the newly licensed nurse and the supervising nurse based upon the evaluation of competency of the newly licensed LVN or RN.
- Newly licensed nurses are permitted to perform any function that falls within the scope of nursing practice for which they are licensed. The newly licensed nurse should take into consideration the patient’s safety, as well as their own educational preparation, experience, knowledge, and physical and emotional ability before accepting an assignment [Board Rule 217.11(1)(T)]. Additionally, newly licensed nurses should obtain instruction, supervision, orientation and training to demonstrate competency when implementing nursing procedures or practices and when encountering new equipment and technology or unfamiliar care situations. [Board Rule 217.11(1)(G), (1)(H), &(1)(R)].
Additional BON resources for newly licensed nurses:
- Rules and Guidelines Governing the Graduate Vocational and Registered Nurse Candidates or Newly Licensed Vocational or Registered Nurse
- Position Statement 15.27, The Licensed Vocational Nurse Scope of Practice
- Position Statement 15.28, The Registered Nurse Scope of Practice
The National Council of State Boards of Nursing (NCSBN) also has a resource for newly licensed nurses which can be found at https://www.ncsbn.org/transition-to-practice.htm.
As described in Position Statement 15.27, the LVN scope of practice is a directed scope of nursing practice and supervision of the LVN’s nursing practice is required by an appropriately licensed supervisor. Each LVN is required to ensure that he or she has the appropriate supervisor prior to accepting an assignment, a position, or employment. The Nursing Practice Act (NPA) and Board Rules define what supervisors are authorized to oversee the LVN’s nursing practice. Specifically, section 301.353 of the NPA states that "the practice of vocational nursing must be performed under the supervision of a registered nurse, physician, physician assistant, podiatrist, or dentist." Board Rule 217.11, subsection (2), which defines standards of nursing practice specific to LVNs, states that “the licensed vocational nurse practice is a directed scope of nursing practice under the supervision of a registered nurse, advanced practice registered nurse, physician's assistant, physician, podiatrist, or dentist”. Supervision is defined in the same rule referenced above as “the process of directing, guiding, and influencing the outcome of an individual's performance of an activity” [Board Rule 217.11 (2)]. The proximity of supervision is not defined in rule. Factors to consider when determining the degree and/or proximity of supervision are discussed in a FAQ on the BON’s website, LVNs “Supervision of Practice”;
LVNs provide valuable and essential nursing care in different types of health care settings. When LVNs work in settings, such as hospitals, long-term care facilities, rehabilitation centers, or skilled nursing facilities, RNs are likely to serve as the LVN's supervisor. LVNs also work in private physician or dentist offices, where physicians, dentists, or podiatrists function as the LVN's supervisor. It is important to make the distinction between clinical and non-clinical supervisory functions. Because LVNs may practice in these various healthcare settings, the term “clinical supervisor” is used to describe the different licensed healthcare providers that are authorized in the NPA to supervise and direct the LVN's practice, e.g., registered nurse, advanced practice registered nurse, physician, physician assistant, podiatrist, or dentist. These types of clinical supervisors oversee the nursing practice of an LVN by monitoring the health status of patients and then directing the LVN's actions to ensure the delivery of safe and effective nursing care. A non-clinical supervisor can carry out supervisory functions of non-nursing issues, e.g., attendance, time cards, or approving vacation time; but, when it comes to supervising a LVN’s nursing practice, neither an LVN, unlicensed supervisor, nor a non-clinical person can carry out those functions.
Position Statements 15.27 and 15.28 state that LVNs are responsible for providing safe, compassionate, and focused nursing care to assigned patients with predictable health care needs. What does predictable health care needs mean?
The LVN in Texas provides nursing care to patients with healthcare needs that are predictable in nature, under the direction and supervision of an appropriately licensed supervisor. The term “predictable” describes health conditions that behave or occur in an expected way. A predictable health condition does not mean that the patient is always stable. Instead, predictable health conditions follow an expected range or pattern that allows the LVN, with his or her clinical supervisor, to anticipate and appropriately plan for the needs of patients. For example, it is appropriate for an LVN to care for a patient with a diagnosis of asthma. The disease process for asthma, while sometimes acute in nature, is predictable in that the symptoms can be recognized and anticipated. The LVN assists his or her clinical supervisor in the planning of nursing care in which the LVN implements appropriate aspects of nursing care to help stabilize the symptoms of asthma and prevent complications, while also helping to evaluate the patient’s response to nursing care. In addition, when complications arise or events occur that are outside the predicted range, the LVN must be able to recognize this change in condition and notify his or her clinical supervisor. This can be contrasted with the RN who may independently plan and implement nursing care while caring for patients with complex healthcare needs.
- Texas Board of Nursing (2010). Differentiated essential competencies (DECs) of graduates of Texas Nursing Programs
- Texas Board of Nursing (2011). Position statement 15.27, The LVN Scope of Practice
- Texas Board of Nursing (2011). Position statement 15.28, The RN Scope of Practice
- Texas Occupations Code, Chapter 301.002(5). Definition of Vocational Nursing
- Texas Occupations Code, Chapter 301.353. Supervision of Vocational Nurse
- 22 Tex. Admin. Code §217.11 (1). Standards of Nursing Practice
- 22 Tex. Admin. Code §217.11 (2). Standards Specific to Vocational Nurses
Although Board rules do not define initial assessments, Board Rule 217.11, Standards of Nursing Practice, addresses focused assessments performed by LVNs [Board Rule 217.11(2)(A)] and comprehensive assessments performed by RNs [Board Rule 217.11(3)(A)].
Because the Texas Board of Nursing (BON) does not define initial assessment, it does not determine whether an LVN may complete an initial assessment. All nurses are required to know and conform to not only the Nursing Practice Act and Board rules, but all federal, state and local laws affecting the nurses’ area of practice [Board Rule 217.11(1)(A)]. As such, Board staff recommends contacting the agency that regulates the specific type of practice setting the nurse works in to determine if other laws and regulations apply to the completion of an initial assessment. For example, acute care facilities such as hospitals, are licensed by the Texas Health and Human Services Facility Licensing Group. Nursing homes, long term care facilities, and home health are also regulated by Texas Health and Human Services Commission. If regulations from these other entities require that an RN perform the initial patient/client assessment, then the LVN cannot perform the initial assessment for the RN.
RNs conduct comprehensive health assessments. As defined by the BON, a comprehensive assessment is "an extensive data collection (initial and on-going) for individuals, families, groups and communities addressing anticipated changes in client conditions as well as emergent changes in a client's health status; recognizing alterations to previous conditions; synthesizing the biological, psychological, spiritual and social aspects of the client's condition; and using this broad and complete analysis to make independent decisions and nursing diagnoses; plan nursing interventions, evaluate need for different interventions, and the need to communicate and consult with other health team members (Board Rule 217.11(3)(A)(i) and Position Statement 15.28 The RN Scope of Practice.)
Licensed vocational nurses may only conduct focused health assessments. A focused assessment is an appraisal of an individual client's status and situation at hand [what is occurring at that moment], contributing to the comprehensive assessment by the RN, supporting on-going data collection, and deciding who needs to be informed of the information and when to inform (Board Rule 217.11(2)(A)(i) and the Position Statement 15.27 LVN Scope of Practice.)
In situations requiring comprehensive assessments by an RN, the LVN cannot begin by performing a focused assessment and have the RN follow up with an assessment of only those parameters not assessed by the LVN. A comprehensive assessment is a different level of assessment requiring that the RN use his/her own independent nursing judgment. Board Rule 217.11(1)(T) clarifies that a nurse is responsible for accepting assignments based on the nurse’s individual educational preparation, experience, knowledge, skills and abilities. Likewise, when a nurse makes assignments to another person(s), the nurse must consider the educational preparation, experience, knowledge, and skills of the person(s) receiving the assignment [Board Rule 217.11(1)(S)].
LVNs may not initiate care plans; however, they may contribute to the planning and implementation of the nursing care plan. Only the RN may develop the initial nursing care plan and make nursing diagnoses [Board Rule 217.11(3)(A)(ii) & (iii)].
The difference between LVN and RN scope of practice is based on differences in educational preparation of nurses licensed at each level as defined in the Differentiated Essential Competencies of Graduates of Texas Nursing Programs (DECs). The DECs may be viewed in its entirety or downloaded from “Education”, then “Documents” on the BON website at https://www.bon.texas.gov/education_documents.
Triage is defined as the sorting of patients and prioritizing of care based on the degree of urgency and complexity of patient conditions. Telephone triage is the practice of performing a verbal interview and making a telephonic assessment with regard to the health status of the caller. As the caller may not accurately describe symptoms and/or may not accurately perceive or communicate the urgency of the situation or condition prompting the call, nurses who perform these functions must have specific educational preparation, as the consequences of inadequate triage can be devastating.
Though the BON does not regulate employers, and the NPA and Board rules are not prescriptive to specific practice settings, the Board believes triage, telephonic nursing, and/or being on-call to handle urgent/emergent issues are all beyond the scope of practice for LVNs. Of concern to the Board are situations where the LVN would be required to independently engage in assessment (either telephonically or face-to-face) for purposes of triaging a patient.
The Board's concerns are based on the fact that LVNs are not educationally prepared to perform triage assessments, either telephonically or in the role of the health care professional initially assessing a patient face-to-face to determine treatment priorities in any setting. The Differentiated Essential Competencies of Graduates of Texas Nursing Programs (DECs) states in part that LVN nursing programs in Texas prepare entry-level LVN graduates to care for patients with predictable health care needs within structured health care settings through a supervised, directed scope of practice. In either telephone or face-to-face triage, the LVN is likely to be dealing with a situation where the patient's condition is not predictable. Further, LVNs are educated in focused assessment skills using the senses of sight, smell, touch, and hearing; and, triage requires comprehensive assessment skills (which are taught at the RN level of education).
In alignment with the educational preparation for vocational nursing, Board Rule 217.11, Standards of Nursing Practice, establishes that LVNs collect data and perform focused nursing assessments, assisting in the determination of predictable health care needs of patients [§217.11(2)(A)(i)]. NPA Section 301.353 and Board Rule 217.11(2) further establish that LVNs have a directed scope of nursing practice under the supervision of a registered nurse, advanced practice registered nurse, physician assistant, physician, podiatrist, or dentist.
Placing an LVN in a position to perform duties requiring comprehensive (versus "focused") assessments of patients who are potentially experiencing unpredictable changes in health status, as well as in a position to make independent nursing judgments (such as would be required for either telephone or on-site initial triage), may place the LVN in a position that violates the BON's Standards of Nursing Practice found in Board Rule 217.11.
Position Statement 15.10 (Continuing Education: Limitations for Expanding Scope of Practice) clarifies that an individual nurse’s scope of practice has licensure-related limitations. While LVNs may expand their practice to a certain degree with post-licensure Continuing Nursing Education, this does not permit LVNs to expand their practice to the extent that additional formal education and another level of licensure is required (such as performance of comprehensive assessments). This relates to Board Rule 217.11(1)(B), which holds each nurse accountable to maintain patient safety. This standard supersedes any doctor's order or facility policy; thus, a nurse cannot avoid his or her "duty" to maintain patient safety by placing responsibility for nursing actions on another party. Position Statement 15.14 (Duty of a Nurse in Any Practice Setting) further clarifies a nurse's duty, regardless of the level of nursing licensure held.
It remains the opinion of the Board (consistent with the opinion of the former Board of Vocational Nurse Examiners) that on-site triage and/or telephone triage by an "on-call" LVN that requires the LVN to perform a comprehensive assessment and make independent treatment decisions on the basis of information supplied by the patient is beyond the scope of practice for an LVN. Triage is not taught in one-year vocational nurse education programs. The LVN has not received education in the complex details of comprehensive assessment as provided in a professional registered nurse education program that would include the knowledge base necessary for on-site and telephone triage.
It is not acceptable to have either an RN or advanced practice registered nurse (APRN) serving as "backup on-call" to assist an LVN who is also responding only telephonically to patients in need. As the LVN's formal education does not prepare the LVN to perform telephonic assessments, the LVN may not be able to determine what information is essential to obtain and then relay to an RN or APRN. In addition, if a patient’s situation is emergent, even if the RN or APRN subsequently call the patient back, the delay in securing emergent treatment may result in serious harm or patient death.
Regardless of the number of years of practice experience, an LVN does not have the educational background equivalent to that of an RN and is not educated or trained to analyze and synthesize symptoms or otherwise conduct a comprehensive assessment telephonically with a patient. Additionally, if emergent action is needed and the LVN is unable to discern this need due to limited assessment abilities, intervention that may be necessary to save the patient's life could be delayed.
Even under supervision and direction, LVNs may not perform comprehensive nursing assessments. Likewise, RNs cannot assign an LVN to perform comprehensive nursing assessments under RN supervision with the intention that the RN will assume “ultimate responsibility”. Each nurse has an independent duty and responsibility to follow the laws and rules applicable to their license [§217.11(1)(A)]. And, every nurse (LVN, RN or APRN) is responsible for making and/or accepting safe and appropriate assignments in accordance with Board Rule 217.11(1)(S) & (1)(T).
The Emergency Medical Treatment and Active Labor Act (EMTALA) is federal law and therefore not under the Board’s jurisdiction. Though Board Staff cannot speak as experts on laws outside of the Board’s purview, in summary, EMTALA helps to ensure patients have access to emergency services regardless of their ability to pay for services. Medicare-participating hospitals that offer emergency services are required to provide a “medical screening examination” (MSE) when a patient requests examination or treatment for an emergency medical condition, including active labor, to determine whether or not an emergency medical condition exists. A hospital is required to stabilize a patient if an emergency medical condition exists. For more information, please visit https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/.
The Board believes that the performance of a MSE is not within the scope of practice for an LVN, regardless of years of experience or post-licensure Continuing Nursing Education at the LVN level. The Board believes that RN educational preparation and licensure constitutes the minimum acceptable level of competence necessary to serve as the qualified medical personnel to conduct a MSE. Even still, the RN must undergo training and be properly authorized within the setting to conduct the MSE, according to EMTALA provisions and requirements [§217.11(1)(A)]. As defined in Board Rule 217.11(2)(A), the scope of practice for an LVN is limited to data collection and the performance of focused assessments of individual patients. Even if a physician wishes to delegate the assessment of medical conditions and/or treatments to an LVN, the LVN is accountable to only accept those assignments within his or her scope of practice as outlined in the NPA and in Board Rule 217.11, Standards of Nursing Practice. Position Statement 15.11 (Delegated Medical Acts) contains additional information on physician delegation to nurses.
The Board is aware that LVNs may also practice in "call centers" (such as a poison control center), physician's offices, or other similar settings. In settings where a physician is present, there may be a set of standardized guidelines approved by the physician to establish treatment priorities within the office environment under the supervision of the physician. Such practice settings may be appropriate for a qualified LVN. Please see Position Statement 15.5 (Nurses with Responsibility for Initiating Physician Standing Orders) for more information. In call centers, the LVN typically has access to computer systems that guide the LVN in asking specific symptom-driven, decision-tree questions that then dictate what action the LVN recommends to the caller.
Evaluation of the system utilized is recommended to assure (1) it is appropriate for the practice setting, (2) that it has an established, standardized and valid/reliable decision-making process (preferably determined outside of the institution/facility in which it is used), and (3) that the LVN has access to an appropriate supervisor for situations that might exceed the capabilities of any computer-based algorithm treatment model.
It is not the intent of the Board to preclude LVNs from practicing in settings where the LVN has sufficient guidance/support/supervision to promote both safe LVN practice as well as patient safety; however, the LVN should not practice in settings where he or she is required to perform comprehensive assessments, make independent treatment decisions or establish treatment priorities as described in this statement.
The BON cannot provide legal advice or counsel to nurses. A nurse may wish to seek his or her own legal counsel for advice on the best course of action for her or himself.
Emergency Nurses Association (2017). Position Statement: Triage Qualifications and Competency. Retrieved from https://www.ena.org/docs/default-source/resource-library/practice-resources/position-statements/triagequalificationscompetency.pdf?sfvrsn=a0bbc268_8
The Nursing Practice Act (NPA) and Board rules require licensed vocational nurse (LVN) practice to be performed under the supervision of a registered nurse (RN), advanced practice registered nurse (APRN), physician, physician assistant (PA), podiatrist, or dentist [NPA Section 301.353 & Board Rule 217.11 (2)]. These licensed supervisors are responsible for directing, guiding, and influencing the outcome of an LVN’s performance of an activity [Board Rule 217.11 (2)]. In sum, vocational nursing practice is a directed scope of practice that requires appropriate supervision.
While the NPA and Board Rules prevent an LVN from practicing nursing in a completely independent manner (that is, without appropriate direction and supervision by an RN, APRN, physician, PA, podiatrist, or dentist), the required proximity of the licensed supervisor to the LVN and/or the LVN’s practice setting is not specified. The proximity to the LVN’s practice setting and the type of licensure of the LVN’s supervisor should be determined on a case-by-case basis with input from the LVN and his/her licensed supervisor. However, an appropriately licensed supervisor must be accessible to the LVN at least telephonically or by similar means at all times.
There are many factors to consider when determining the appropriate proximity of the licensed supervisor, including, but not limited to:
- the type of practice setting;
- the stability of the patient’s condition;
- the complexity of tasks being performed by the LVN;
- the LVN’s experience and knowledge; and
- any laws and/or regulations that apply to the specific practice setting or situation at hand.
To illustrate, compare an LVN who performs routine nursing tasks with an LVN who performs a delegated medical act (such as, Botox® administration). These are very different situations, and a determination of who (RN or physician, for example) is appropriate to supervise the LVN as well as the necessary proximity of the licensed supervisor will vary in these situations. Other regulations outside of the Board’s purview, for example, those related to reimbursement, may also be a factor in the latter situation [Board Rule 217.11 (1)(A)].
As a reminder, whether a task is a nursing act or a delegated medical act, each nurse (LVN or RN) is individually responsible for providing a safe environment and is accountable for the tasks he/she chooses to perform [Board Rule 217.11 (1)(B) & (1)(T)]. Position Statement 15.14, Duty of a Nurse in Any Practice Setting, further illustrates a nurse’s duty to his/her patients.
Nurse's Role with the Emergency Medical Treatment & Labor Act: Performance of Medical Screening Exams
The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law established in 1986 that requires hospitals or other acute care facilities who offer emergency services to provide a medical screening examination to each person presenting to the emergency department.
A medical screening exam is necessary to determine whether or not an emergency medical condition, not nursing condition, exists. EMTALA requires assessment of a patient for the existence of an emergency medical condition before the patient can be transferred or released from the emergency department. An emergency medical condition is defined under federal law, 42CFR §489.24 and may be readily viewed in its entirety at the U.S. Government Publishing Office Electronic Code of Federal Regulations. An understanding of what EMTALA is and what is meant by performance of a medical screening exam is essential to nurses practicing in facilities affected by this federal regulation.
The EMTALA Interpretive Guidelines indicate that a facility may credential specific registered nurses to perform a Medical Screening Exam (MSE) and develop bylaws specifying which RN nursing staff are considered to be "qualified medical personnel" and under what circumstances a physician must be consulted and/or must physically come to the unit/facility. The MSE may be delegated by the physician to other qualified medical personnel according to the physician delegation rules found in the Texas Administrative Code, Chapter 193.
An RN may be able to perform a medical screening exam if he/she possesses adequate knowledge and skills and there are adequate support systems and standing orders from a physician in place to delegate this medical aspect of care; however, the RN should always have telephonic access to a physician who is also capable of physically responding to do a hands-on evaluation if needed or requested by the RN. RNs who do not also hold advanced practice registered nurse licensure cannot independently engage in medical diagnosis or the prescription of therapeutic or corrective measures, as this is beyond the scope of practice for an RN.
The Texas Board of Nursing (BON or Board) does not have purview over specific employment policies, procedures, or site-based requirements. Therefore, in addition to being permitted by an employing facility, the RN must also be competent to carry out the assigned task in a manner that complies with the Texas Nursing Practice Act (NPA) and Board Rules. Likewise, there may be additional laws, rules, or regulations applicable to the nurse’s practice setting that may impact his/her practice.
There is broad, general guidance for registered nurses accessible on BON website in Practice then Scope – Registered Nurse Scope of Practice. This includes Board Rule 217.11, Standards of Nursing Practice; the Board's Scope of Practice Decision-Making Model (DMM), and Position Statement 15.14, Duty of a Nurse in any Practice Setting. The referenced position statement establishes that a nurse has a responsibility and duty to a patient to provide and coordinate the delivery of safe, effective nursing care, through compliance with the NPA and Board Rules and demonstrates the importance for nurses to intervene or advocate on behalf of their patients. This “duty to patients” supersedes any facility policy or physician order. The Scope of Practice Decision-Making Model (DMM) guides nurses in deciding if a task is within the nurse's scope of practice. The steps combine BON references and resources with additional references and resources (policies and procedures from the employment setting and nursing and healthcare research and literature) and use reflective questions to guide a nurse's practice decisions. At any point, if a nurse reaches a Stop Sign, he/she should consider the activity or intervention in question beyond (or outside) his/her scope of practice. Each nurse is accountable for the assignments the he/she accepts [Board Rule 217.11 (1)(T)]. Position Statement 15.11, Delegated Medical Acts, contains additional information on physician delegation to nurses.
The Board believes that the performance of a Medical Screening Exam (MSE) is not within the scope of practice for an LVN, regardless of years of experience or post-licensure Continuing Nursing Education at the LVN level. As defined in Board Rule 217.11(2)(A) the scope of practice for an LVN includes the performance of a focused assessment and the determination of predictable healthcare needs of an individual client. Since a comprehensive nursing assessment would be necessary to conduct a MSE, the RN level of licensure would be required. Even if a physician wishes to delegate assessment of medical conditions and/or treatments to an LVN, the LVN is accountable for only accepting those assignments within his/her scope of practice as outlined in the NPA and in Board Rule 217.11, Standards of Nursing Practice.
No, a Medical Screening Exam (MSE) is not the same as triage. The differentiation is discussed in depth under the EMTALA Interpretive Guidelines. Board staff cannot speak as experts on laws/rules outside the jurisdiction of the BON; therefore, Board staff suggest reviewing the guidelines.
The definition of "professional nursing" found in Texas Occupation Code §301.002(2) of the Nursing Practice Act (NPA) states that the practice of professional nursing "does not include acts of medical diagnosis or prescription of therapeutic or corrective measures." This means an act must not require the RN to exercise independent medical judgment or make a medical diagnosis, as this is the practice of medicine, not nursing. Board Rule 217.11, Standards of Nursing Practice, contains the minimum standards of acceptable nursing practice. Some of the standards in Board Rule 217.11 that would apply to EMTALA medical screening exams performed by an RN include, but are not limited to, the requirements that an RN must:
- (1)(A) know and conform to the NPA and Board rules as well as federal, state, or local laws affecting the nurse’s current area of practice;
- (1)(B) maintain a safe environment for clients and others;
- (1)(D) accurately and completely report and document: (i)-(vi);
- (1)(M) institute appropriate nursing interventions that might be required to stabilize a client’s condition and/or prevent complications;
- (1)(O) implement measures to prevent exposure to infectious pathogens and communicable conditions;
- (1)(P) collaborate with the client, members of the health care team and, when appropriate, the client's significant other(s) in the interest of the client's health care;
- (1)(T) accept only those nursing assignments that take into consideration patient safety and that are commensurate with one's own educational preparation, experience, knowledge and physical and emotional ability; and
- (3)(A)(i) perform comprehensive nursing assessments regarding the health status of the client.
Regardless of practice setting, the nurse's duty to keep patients safe cannot be superseded by physician orders, facility policies, or administrative directives; see Position Statement 15.14, Duty of a Nurse in Any Practice Setting. Position Statement 15.11, Delegated Medical Acts contains additional information on physician delegation to nurses. To assist in determining if a task is within an individual nurse's scope of practice; nurses may utilize the Board's Scope of Practice Decision-Making Model (DMM).
Advanced practice registered nurses (APRNs) are RNs who have completed a formalized education program, e.g., Master's or Post-Master's APRN curriculum, that enables them to engage in certain aspects of medical diagnosis and medical management within their advanced practice role and population focus. Advanced practice licensure is not sufficient on its own to qualify an APRN to perform all types of medical screening exams. The APRN would have to be licensed in an appropriate role and population focus, e.g., Acute Care Nurse Practitioner, Adult Nurse Practitioner, or Family Nurse Practitioner, for the evaluation of general medical conditions of adults. The appropriately licensed APRN should have a signed protocol or collaborative agreement with a physician, in accordance with Board rules, that specifically delegates medical aspects of care to the APRN.
Other sources of Information on EMTALA include:
- EMTALA web page at https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA
- Centers for Medicare and Medicaid Services at http://www.medicare.gov or national toll free number 1-822-267-2323.
- Emergency Nurses Association http://www.ena.org
- American Academy of Emergency Medicine https://www.aaem.org/resources/key-issues/emtala; http://www.aaem.org/emtala/
Although the laws regarding immunizations are not within the BON's authority, an Attorney General opinion in 1981 (MW-318) determined immunizations are preventative, thus no medical diagnosis is required or made when a person receives an immunization. Board staff recommends that a facility have standing physician delegation orders that guide the nurse when to give pneumococcal or influenza vaccines. Position Statement 15.5, Nurses with Responsibility for Initiating Physician Standing Orders, references the Texas Medical Board rules applicable to these types of orders, and provides guidance to nurses and employers on important components to include in standing delegation orders.
Board staff recommend review of documents located on our web site. Some of the documents to consider for review are Rule 217.11 Standards of Nursing Practice, Registered Nurse Scope of Practice, LVN Scope of Practice and the Scope of Practice Decision-Making Model (DMM).
As the BON does not regulate specific practices or practice settings, you may wish to check with the Department of State Health Services [DSHS]. The number for the Immunizations Branch is 1-800-252-9152. The DSHS immunization web site is http://www.dshs.texas.gov/immunize/
Both the advanced practice registered nurse and the registered nurse delegate in the same manner – through the rules in Chapters 224 and 225. The Delegation Resource Packet contains access to the delegation rules in Chapters 224 and 225 as well as other resources related to delegation.
In general, vaccination administration would be prohibited from delegation by an RN to unlicensed assistive personnel (UAP). The delegation rules in Chapter 224 are more restrictive than the rules in Chapter 225. All medication administration and routes of medication administration are prohibited from delegation in the acute delegation rules with the exception of the medication aide permit holder. An RN cannot delegate the injectable route to a medication aide with the exception of insulin in compliance with Rule 224.9.
RNs may supervise UAPs performing tasks delegated by other licensed healthcare providers. In these situations, an RNs accountability is to verify the training of the UAP, verify the UAP can perform the task safely, and provide adequate supervision of the UAP. If the RN cannot verify all of these responsibilities, the RN must notify the delegating licensed healthcare provider that the UAP is not capable of performing the task (Rule 224.10 or 225.13)
A nurse’s scope of practice is related to the nurse’s education, experience, knowledge, and physical and emotional ability. In addition, the practice setting of the nurse influences the nurse’s scope of practice through the policies and procedures as these reflect the regulations for the practice setting. Nurses follow the Nursing Practice Act (NPA) and Board Rules as well as any other laws, rules, or regulations affecting the nurse’s area of practice. The Scope of Practice Decision-Making Model (DMM) guides a nurse in making good judgments about the tasks or procedures a nurse chooses to perform. Nurses have a duty to promote safety for their patients. Position Statement 15.14, Duty of a Nurse in any Practice Setting further explains the responsibility of the nurse to advocate for patient safety.
In the definition of nursing, found in the Nursing Practice Act section 301.002, medical diagnosis is excluded from the practice of nursing. If the purpose of a medical screening is to determine a medical diagnosis, this would be beyond the parameters of nursing practice. A nurse is required to implement measures to prevent exposure to infectious or communicable conditions [Rule 217.11 (1)(O)]. One way to accomplish this standard is to identify incoming patients who might be infectious and provide them with a separate waiting area so as not to expose others to communicable conditions. When a physician is delegating to a nurse, the nurse is expected to comply with the Standards of Nursing Practice just as if performing a nursing procedure. Position Statement 15.11, Delegated Medical Acts discusses physician delegation and the role of the nurse.
Nurses are to implement measures to prevent patient exposure to infectious pathogens and communicable conditions as stated in Board Rule 217.11(1)(O). Nurses may choose to receive a vaccination to prevent exposing patients to the flu and to protect them from possible infection. A person may be contagious prior to developing symptoms with seasonal flu and thus may expose others to the disease. The following web sites have information on the seasonal influenza:
- Centers for Disease Control and Prevention - Influenza: http://www.cdc.gov/flu/
- Texas Department of State Health Services: http://www.dshs.state.tx.us/immunize/flu.shtm
- World Health Organization - Influenza: http://www.who.int/topics/influenza/en/
BON Position Statement 15.13, Role of LVNs and RNs in School Health, recommends that the school nurse be an registered nurse (RN) but does not absolutely preclude a licensed vocational nurse (LVN) with appropriate experience and supervision from practicing in a school health setting. However, the Texas Diabetes Council training guide for unlicensed diabetes care assistants (UDCAs) defines a school nurse in accordance with 19 Texas Administrative Code 153.1021(a)(17), as:
(17) School nurse--An educator employed to provide full-time nursing and health care services and who meets all the requirements to practice as a registered nurse (RN) pursuant to the Nursing Practice Act and the rules and regulations relating to professional nurse education, licensure, and practice, and who has been issued a license to practice professional nursing in Texas.
This particular section of the Texas Administrative Code is under the purview of the Texas Education Agency. School nurses must be aware of and comply with not only the Board’s laws and rules, but also with all other related regulations to their area of practice [Board Rule 217.11(1)(A)].
The BON does not preclude LVNs from being employed in school settings; however, the BON regulates the nurse, not the setting, and has no jurisdiction over employment practices. No matter the setting or job title, every nurse must comply with the NPA and Board rules as well as with all local, state or federal laws, rules or regulations affecting his/her area of practice [Board Rule 217.11(1)(A)]. In all cases, LVN practice is a directed scope of nursing practice under the supervision of a registered nurse, advanced practice registered nursed, physician assistant, physician, podiatrist, or dentist [Board Rule 217.11(2)]. The LVN participates in the planning of nursing care needs of patients and contributes to the development and implementation of nursing care plans for patients and their families with common health problems and well-defined health needs. LVNs may teach from a developed education plan as well as contribute to its development.
The regulations concerning training of UDCAs in Texas public schools are not within the BON's jurisdiction. The school principal determines which school personnel are appropriate to be trained to assist with caring for students with diabetes if/when a nurse is not available. In schools that do not have a registered nurse, the principal assures that training is provided by a health care professional with expertise in diabetes care. Questions regarding training of UDCAs should be directed to the Texas Diabetes Texas Diabetes Council. For complete information, see Texas Health & Safety Code Chapter 168.
The training of UDCAs in Texas public schools is not within the BON's jurisdiction.
A school nurse (RN) is assigned to 3 different elementary schools within one district and rotates between the schools. The schools’ principals assign who will be trained as unlicensed diabetes care assistants (UDCAs). The principals also assume administrative responsibility for these staff whether they are functioning within their job descriptions or in the "extra" role of UDCA. Working with the principals at all 3 schools, the school RN coordinates training of all UDCAs through another RN with expertise in all aspects of the care of children with diabetes.
Given the situation described above, what is the role of the RN with the UDCAs from a BON standpoint?
According to Texas Health & Safety Code Chapter 168, if a school nurse is assigned to a campus, the school nurse shall coordinate the training of school employees acting as unlicensed diabetes care assistants. Board Rule 217.11(1)(A) requires all nurses to comply with all laws, rules and regulations affecting their area of practice, not just those under the Board’s jurisdiction.
Congruent with the diabetes management and treatment plan and the individualized health plan (IHP) for each child with diabetes, the RN can develop information sheets with emergency contact numbers, reportable conditions, and how to intervene in a number of possible emergency situations that could occur with each child. Health and Safety Code, Chapter 168 and school policy mandate that this information be given to any school employee transporting a child or supervising a child during an off-campus activity. The school principal and the school nurse, if a school nurse is assigned to the school, shall develop a student’s IHP in collaboration with the student’s parent or guardian and, to the extent practicable, the physician responsible for the student’s diabetes treatment and one or more of the student’s teachers (Health & Safety Code Chapter 168.003)
As for the LVN, Nursing Practice Act Section 301.002(5) defines the licensed vocational nurse (LVN) scope of practice as a directed scope of nursing practice and specifically states that LVNs participate in the development and modification of the nursing care plan, whereas the RN is responsible for the development of the nursing care plan. The LVN may assist with the development of the IHP but is not permitted to write it independently.Texas Health and Safety Code §168.003 defines the IHP as a "coordinated plan of care" developed by the principal and the school nurse, if a school nurse is assigned to the school, in collaboration with the student’s parent/guardian and the student’s physician, if possible. Developing or initiating a student’s IHP is beyond the LVN scope of practice as defined by the BON in Rule 217.11(2)(A)(iii). The LVN may assist with the development of the IHP but is not permitted to develop it independently.
Texas Health and Safety Code §168.00 mandates schools to permit and encourage students' abilities to engage in self-care. Occasionally, used supplies, such as insulin syringes or blood-stained gauze, may not be disposed of properly, exposing other children to potentially hazardous bodily fluids/blood that could carry infectious pathogens. Does Health and Safety Code §168.008 mandate that a child always be permitted to engage in the self-management of diabetes anywhere on the campus, regardless of the health threat posed on other students if a given student isn't capable of disposing of used supplies and cleaning the testing area in a responsible manner? Must a student who is not capable of, either by age, maturity or both, appropriately maintaining supplies and equipment (losing his/her glucometer, leaving used supplies where others could be exposed to blood, used sharps, etc.) be permitted to self-manage?
The Standards of Nursing Practice (Board Rule 217.11(1)(O)) require all nurses to prevent exposure of clients (students) to infectious pathogens and communicable conditions. The language in Health and Safety Code §168.008 prefaces the mandate to permit/encourage self-management with the phrase "in accordance with the student's individualized health plan...".
Based on maturity, intellectual understanding, or other factors, if a student with diabetes is unable to safely accomplish self-management, then the nurse should assure that this issue is addressed in discussions with the principal, parents, physician, and teacher(s) in revising the IHP as necessary to protect both the child with diabetes as well as others, including children, in the school setting. The IHP may require multiple revisions as the child's ability to engage in responsible self-management increases. The Texas School Health Program at the Department of State Health Services/Texas Health and Human Services may have additional information.
Texas Health and Safety Code Section 168.005(c) requires that a health care professional with expertise in the care of persons with diabetes or a school nurse provide the training. The Texas Diabetes Council (TDC) is responsible for developing guidelines for training. The Guidelines for Training School Employees who are not Licensed Healthcare Professionals to implement House Bill 984 (79th Legislative Session) related to the Care of Elementary and Secondary School Students with Diabetes (Guidelines) include training curricula and links to websites (FAQs related to Implementing House Bill 984 and the Requirements in the Texas Health and Safety Code)
The school nurse or the healthcare professional who conducts the training will determine if competence of clinical tasks is acceptable and safe. If not, further training will need to be conducted OR the school principal will need to select additional staff to be trained (FAQs related to Implementing House Bill 984 and the Requirements in the Texas Health and Safety Code).
While the BON has no jurisdiction over school district policies, nurses do have the obligation to promote a safe environment for students and staff [Board Rule 217.11(1)(B)] and to institute appropriate nursing interventions to stabilize a client's condition and prevent complications [Board Rule 217.11(1)(M)]. Glucagon is prescribed to thousands of students with diabetes. Both students and their parents or guardians are instructed by providers and pharmacists on administration of glucagon should a hypoglycemic reaction occur.
Chapter 224 of the Board’s rules concerns delegation and becomes applicable in the school setting when acute health conditions arise and patients become unstable or unpredictable, i.e., an emergency situation. Board Rule 224.6, General Criteria for Delegation, outlines the standards that must be met before an RN can delegate nursing tasks to unlicensed persons. Even during an emergency situation in the school setting, the RN cannot delegate tasks that require unlicensed persons to exercise professional nursing judgment; but, the unlicensed person may take any action that a reasonable, prudent non-health care professional would take in an emergency situation. This forms the basis for the Frequently Asked Question from the Board’s Delegation Resource Packet online entitled Medication or Procedures in an Emergency Situation. Additionally,a series of algorithms that serve to provide delegation decision making guidance for RNs in the school setting along with BON Position Statement 15.13, Role of LVNs and RNs in School Health offer clarification. Each nurse will need to exercise sound nursing judgment to decide when it is appropriate and safe to delegate in emergency situations, remembering the supervision requirements of delegation as well.
- Family Educational Rights and Privacy Acts (FERPA)
- Health Insurance Portability and Accountability Act of 1996, HIPAA (Confidentiality)
- National Association of School Nurses
- Occupational Safety and Health Administration (Bloodborne Pathogens)
- Texas Association of School Boards
- Texas Department of State Health Services, School Health Program
- Texas Diabetes Council
- Texas Education Code 22.052 (a) (Administration of Medication)
- Texas Education Code 21.003 ('School Nurse' must be licensed)
- Texas Education Service Centers
- Texas Health & Safety Code Chapter 168 (Care of Students with Diabetes)
- Texas School Nurse Organization
The Nursing Practice Act or NPA (Texas Occupations Code, Chapter 301) and Board Rules are written broadly so they can be applied by every nurse to all of the many different practice settings and specialty areas in nursing across Texas. The BON does not have a list of tasks that nurses can perform because each nurse has a different background, knowledge and level of competence. Determinations of a nurse's scope of practice are often complex and it is up to the individual nurse to utilize sound professional judgment in accepting any given assignment and/or performing any given procedure.
Off label use indicates that the medication is being used in a way not specified in the U. S. Federal Drug Administration’s (FDA’s) approved packaging label, or insert. All prescription drugs marketed in the U.S. have an FDA-approved label. The label provides detailed instructions regarding approved uses and doses which are based on the results of clinical studies that have been submitted by the drug maker to the FDA. Off label use of a medication may be supported by research and literature that addresses the necessary knowledge, required safeguards and risks associated with the off label use of the medication.
When a nurse is considering giving a medication, there are resources available on the BON website under the Practice tab and by selecting Nursing Practice Information to assist the nurse in arriving at a decision based on the topic at hand.
One such resource is the Board’s Scope of Practice Decision-Making Model (DMM) which is a step-by-step tool nurses practicing in Texas can use to determine if any given activity/intervention is within their individual scope of practice. The DMM is designed to be used in sequence, beginning at the top with question number one. In the model, nurses are asked reflective questions, and depending on how they answer, they are directed to continue through the model or stop. At any point, if a nurse reaches a Stop Sign, he/she should consider the activity or intervention in question beyond (or outside) his/her scope of practice. Keep in mind, the answer may not be the same for each nurse.
In the Scope of Practice Decision-Making Model , question one includes references to documents and information on the BON website, including statutes, rules, and position statements. While there is nothing specific in the Nursing Practice Act or Board Rules and Regulations that allows or prohibits the administration of medications for off-label use, there are laws and rules that licensed vocational nurses (LVNs) and registered nurses (RNs) should consider in this scope of practice decision. For example, the LVN cares for patients whose healthcare needs are predictable. When considering the administration of a medication, the predictability of the patient, the patient's response and the nurse's skill set required to address the needs of the patient, must be considered. If any of these cannot be addressed by the LVN, then it would be beyond the scope of practice of the LVN to administer off-label medications. Position Statement 15.25, Administration of Medication & Treatments by LVNs, addresses medication administration; however, if the route of the medication administration is intravenous (IV), then Position Statement 15.3, LVNs Engaging in Intravenous Therapy, Venipuncture, or PICC Lines, must also be considered.
One of the main rules applicable to a nurse's practice is Board Rule 217.11, Standards of Nursing Practice. When a nurse is considering performing a task, such as the off-label administration of medications, several standards in section one of this rule, will apply to all LVNs and RNs. Patient safety must be considered in every assignment a nurse accepts [(Board Rule 271.11(1)(B)]. A nurse must know about the medication, why it is being used, what effects can be expected, and how to administer the medication correctly in order to administer it safely [(Board Rule 271.11(1)(C)]. Some medications may require an assessment, vital signs, and a pain description and pain level provided by the patient. Certain medications require the presence of equipment or monitoring during and following the medication administration due to the potential or known effects of the medication. Some medications require the nurse administering the medication to have specific skills and current competencies to include emergency interventions should adverse outcomes occur. Last, but not least, medication administration is not complete without accurate documentation [(Board Rule 217.11(1)(D)].
There are several Position Statements that apply to the off-label administration of a medication. Position Statement 15.14, Duty of a Nurse in Any Practice Setting, utilizes a landmark court case to illustrate the responsibility a nurse has to advocate for the patient, thus emphasizing the nurse's critical role in patient safety. Some medication administration is initiated through physician standing orders as addressed in Position Statement 15.5, Nurses with Responsibility for Initiating Physician Standing Orders. Occasionally, a physician delegated act includes medication administration; see Position Statement 15.11, Delegated Medical Acts. There are two position statements that specifically address either the RN or LVN scope of practice in broad terms. These are Position Statements 15.27, The Licensed Vocational Nurse Scope of Practice and 15.28, The Registered Nurse Scope of Practice.
Question two of the Scope of Practice Decision-Making Model directs nurses to look for a valid order authorizing the activity or intervention.
Question three asks if the activity or intervention is consistent with current policies and procedures in the employing organization or facility. Facility policy may identify specific levels of licensure for the administration of certain medications, or specific areas or units within the facility where the administration of medications may occur. There may be specific requirements related to current competencies of the personnel who will be administering medications, and for monitoring the patient after the administration of medications. There may be a policy distinction between label uses and off-label uses of medications. When a nurse identifies the safety issues involved in administering any off-label medication correctly, looking for an employer's policy outlining the safety measures required for the safe administration of the medication may assist a nurse in determining if off-label administration of medications will be safe in a specific setting.
Nurses are required to administer medications correctly, using evidence to support or refute giving a medication. Question four of the Scope of Practice Decision-Making Model requires the performance of the activity or intervention to be consistent with current evidence-based practice findings and/or guidelines or scope of practice/position statements from national nursing organizations and does not negate the requirement for nurses to administer medications correctly.
If there is literature to support the safe off-label administration of a medication, a nurse should consider questions five, six, and seven of the Scope of Practice Decision-Making Model . Question five asks if the nurse has the current competencies to perform the activity or intervention safely & effectively, in accordance with the accepted nursing “standard of care”. If a medication is being given via the IV route, having current skills to assess and intervene are important. If a pump is being used to administer the IV medication, then being familiar with the pump is essential.
Question six asks for the nurse to consider whether a reasonable and prudent nurse would administer the off-label medication in a similar circumstance. Finally, question seven is a personal reflective question and asks the nurse to accept accountability for the provision of safe care and the outcome of the care rendered.
Question eight is specifically for LVNs and asks if there will be adequate supervision available. This is a reminder that the LVN has a directed scope of practice under the supervision of a registered nurse, advance practice registered nurse, physician, physician assistant, dentist, or podiatrist [(Board Rule 217.11(2)]. For additional assistance in answering this question, Board Staff recommend review of the Frequently Asked Question (FAQ): LVNs “Supervision of Practice”.
Both the mission of the Board and the nurse's duty to the patient align in favor of patient safety. Therefore, a nurse is obligated to make the safest decision for the patient and using the Scope of Practice Decision-Making Model for determining scope of practice is one tool to help nurses with the decision of whether to accept or refuse an assignment related to the off-label administration of medications.
Texas Department of State Health Services Schedules of Controlled Substances
Texas Board of Nursing (2012). Nurses on guard-best practice in patient safety: Off-label administration ok ketamine for pain management by a nurse. Texas Board of Nursing Bulletin, 43(4), 5-6.
Ketalar Label from FDA website
Tex. Admin. Code § 217.11
Tex. Admin. Code § 217.20
Tex. Occ. Code, Sec.301.002 (5)
Tex. Occ. Code, Sec. 301.352
Tex. Occ. Code, Sec. 301.353
Yes, Board Rule 217.14, Registered Nurses Performing Radiologic Procedures.
When registration with the Board is required, RNs must complete the BON application for registration form and submit it to the Board. There is no cost for registering. The RN who is registered with the Board must notify the BON within 30 days of any changes that render the information provided on the application incorrect, such as, changes in the identity of the practitioner or director of radiologic services under whose instruction or direction the radiological procedures are performed [Board Rule 217.14 (c)].
Board Rule 217.14 (d) requires an RN who performs radiologic procedures to complete a training program that adequately prepares the nurse to provide safe and effective nursing care in that role. The Board does not prescribe a specific course that must be completed. Depending on the specific procedures to be performed, the training content, method, and length may vary. Board Rule 217.14 also references other laws outside of the BON's jurisdiction, e.g., the Medical Radiologic Technologist Certification Act (Texas Occupations Code Ch. 601), any applicable rules of the Texas Medical Board, and others. These laws and regulations also require an RN to demonstrate competency in performing radiologic procedures. Each RN is responsible for maintaining a record demonstrating completion of an appropriate training program that has adequately prepared the RN to perform the radiologic procedures. This record must be maintained for a minimum of three consecutive renewal periods, or 6 years, for auditing purposes.
Some radiologic procedures may be considered delegated medical acts. BON staff recommend caution when performing a task as a delegated medical act. The Board's Position Statement 15.11, Delegated Medical Acts, provides more detail on this subject. Delegated medical acts do not diminish the responsibility of the nurse in any way to adhere to the Board's Standards of Nursing Practice, found in Board Rule 217.11. Included in Board Rule 217.11 are standards requiring a nurse to know and comply with the Nursing Practice Act (NPA) and Board's Rules and Regulations as well as all federal, state, or local laws to maintain client safety [§217.11(1)(A) & (1)(B)]. Further, nurses must accept only those assignments that are within the nurse's knowledge, skills, and abilities; seek instruction as necessary when implementing new procedures/practices; and maintain competency when performing tasks in any practice setting [§217.11(1)(G), (1)(R), & (1)(T)].
For general information on nurses practicing in the area of radiology, BON staff recommend contacting the Occupational Safety and Health Administration and professional nursing organizations, such as, the Radiological Society of North America (http://www.rsna.org) or the Association for Radiologic and Imaging Nursing (http://arinursing.org). Other nursing organizations related to a nurse's specialty practice setting may provide further guidance. Additionally, national patient safety organizations may provide resources and procedure guidelines for evidence-based practice. Examples include:
Board Rule 217.14 only addresses RNs in the practice of performing radiologic procedures. The Nursing Practice Act and Board Rules and Regulations do not address LVNs performing radiologic procedures; therefore, an LVN would need to obtain the required license or permit necessary to perform radiologic procedures, such as, a medical radiologic technologist license (regulated by the Texas Medical Board). In such a case, the Board’s Position Statement 15.15, Board’s Jurisdiction Over a Nurse’s Practice in Any Role and Use of the Nursing Title, would be helpful for LVNs who obtain additional licensure, as the position statement reiterates that any licensed nurse in Texas is responsible to and accountable to adhere to both the NPA and Board Rules and Regulations, which have the force of law [§217.11(1)(A)].