Category Archives: Health Care Regulation NV

Who Can Legally Write Prescriptions in Nevada? (Part 2) | Focus on the APRN

The Nevada Legislature endowed the Board of Nursing with the authority to define and regulate whether and to what extent an advanced practice registered nurse may prescribe medications.  The regulations (as opposed to the statutes, which are different) are found within the Nevada Administrative Code sections 632.254 to 632.295.  Those sections, as they exist on 4/15/2016, are set forth below.

The SBON must authorize the APRN to issue written prescriptions.  This authorization is separate from the authorization to practice as an APRN.  The APRN must obtain an advanced course in the therapeutic uses of pharmacy products.

If the APRN changes the population that they serve, then the Board must be notified and a new application to write prescriptions is required.  For example, if the APRN was changing from a psychiatric mental health focus to general pediatrics, the nurse should look into whether a new application is required.

The below is the pertinent administrative code section involving applications to the SBON to issue prescriptions as it exists on 4/15/2016.  As discussed in part I of this series, a separate application to issue prescriptions must also be presented to the State Board of Pharmacy.

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NAC 632.257  Authorization to issue written prescriptions for controlled substances, poisons, dangerous drugs and devices. (NRS 632.120, 632.237)

     1.  An applicant for a license to practice as an advanced practice registered nurse will be authorized to issue written prescriptions for controlled substances, poisons, dangerous drugs and devices only if the applicant:

     (a) Is authorized to do so by the Board;

     (b) Submits an application for authority to issue written prescriptions for controlled substances, poisons, dangerous drugs or devices to the Board; and

     (c) Has successfully completed:

          (1) A program that complies with the requirements set forth in paragraph (a) of subsection 1 of NAC 632.260 and includes an advanced course in pharmacotherapeutics; or

          (2) A program of academic study that:

               (I) Is approved by the Board;

               (II) Consists of at least 2 semester credits or an equivalent number of quarter credits in advanced pharmacotherapeutics; and

               (III) Is completed within the 2 years immediately preceding the date the application is submitted to the Board.

     2.  In addition to the information contained in the application for a license to practice as an advanced practice registered nurse, an applicant who completes, before June 1, 2005, a program designed to prepare an advanced practice registered nurse and who does not hold a master’s or doctorate degree with a major in nursing must, in his or her application for authority to write a prescription for controlled substances, poisons, dangerous drugs and devices, include documentation of 1,000 hours of active practice prescribing medication in the immediately preceding 2 years as an advanced practice registered nurse.

     3.  Except as otherwise provided in subsection 4, if an advanced practice registered nurse who is authorized to prescribe certain controlled substances, poisons, dangerous drugs and devices changes his or her role or population of focus, he or she must submit an application to the Board for authority to prescribe those controlled substances, poisons, dangerous drugs and devices which are currently within the standard of practice in that role or population of focus. In addition to the information contained in an application submitted pursuant to this subsection, an advanced practice registered nurse who completes, before June 1, 2005, a program designed to prepare an advanced practice registered nurse and who does not hold a master’s or doctorate degree with a major in nursing must include in his or her application documentation of 1,000 hours of active practice prescribing medication in the new role or population of focus as an advanced practice registered nurse.

     4.  An advanced practice registered nurse who:

     (a) Is authorized to prescribe certain controlled substances, poisons, dangerous drugs and devices; and

     (b) Changes his or her role or population of focus to a role or population of focus that is substantially similar to his or her former role or population of focus, is not required to submit to the Board the application required pursuant to subsection 3 if the Board has authorized him or her to prescribe controlled substances, poisons, dangerous drugs and devices in the practice of his or her former role or population of focus.”

California Licensed Prescribers, Deadline for CURES

The California Department of Justice recently released a CURES 2.0 registration tip sheet to help individuals register or access the system.

LINK: https://oag.ca.gov/sites/all/files/agweb/pdfs/pdmp/cures-tips-tricks.pdf?

As a reminder, licensed prescribers authorized to prescribe scheduled drugs are required to register for access to CURES 2.0 by July 1, 2016.  This includes physicians, nurse practitioners and physician’s assistants.  In addition, pharmacists/dispensers of medications are required to register.

Additional information for the CURES 2.0 system can be found at the following links:
- http://www.rn.ca.gov/licensees/cures.shtml
- https://oag.ca.gov/cures

Who Can Legally Write Prescriptions in Nevada? (Part 1)

Is it only physicians who may legally write “script” in Nevada?  What class of persons or entities may prescribe medications?

One could sarcastically respond that “anyone can write a prescription”.  This is similar to the question clients and would-be clients often ask, i.e. “Can so and so sue me for that?”  The answer is, “Anyone can sue you for anything”.  “All it takes is some typed up pleadings and a filing fee, and just about any court will file your complaint and give you a case number”.  In law, rather, the proper question is “Can someone ‘win’ in a lawsuit against me?”

Thus, anyone with a computer can print out a letter “prescribing” medication for anyone else, including herself.  The problem becomes whether the recipient of the prescription can find someone to fill and dispense it.  The pharmacists stock the drugs.  The health care providers do not.

Pharmacists Supply Drugs for Legally Written Prescriptions

Nevada law describes what prescriptions pharmacists may fill and dispense.

The practitioners whose prescriptions a pharmacist may fill are several, and are delineated in NRS 639.0125, “Practitioner” defined.  They are:

  • a physician, dentist, veterinarian or podiatric physician who holds a license to practice his or her profession in Nevada,
  • a licensed hospital
  • a licensed pharmacy
  • any other institution licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer drugs in the course of professional practice or research in Nevada
  • an advanced practice registered nurse who has been authorized to prescribe controlled substances, poisons, dangerous drugs and devices;
  • a (medical) physician assistant who, both, holds a license issued by the Nevada Board of Medical Examiners and is authorized by the Board to possess, administer, prescribe or dispense controlled substances, poisons, dangerous drugs or devices under the supervision of a physician as required by chapter 630 of NRS
  • an osteopathic physician assistant who holds a license issued by the State Board of Osteopathic Medicine, and is authorized by the Board to possess, administer, prescribe or dispense controlled substances, poisons, dangerous drugs or devices under the supervision of an osteopathic physician as required by chapter 633 of NRS
  • an optometrist who is certified by the Nevada State Board of Optometry to prescribe and administer therapeutic pharmaceutical agents pursuant to NRS 636.288, when the optometrist prescribes or administers therapeutic pharmaceutical agents within the scope of his or her certification.

In the instance of advanced practice nurses, the authorization must be obtained first, from the Board of Nursing, and then the Board of Pharmacy.  Both boards must approve the authorization to prescribe controlled medications.   Specifically, pursuant to NRS 639.2351, an advanced practice registered nurse may prescribe, in accordance with NRS 454.695 and 632.237, controlled substances, poisons, dangerous drugs and devices if the advanced practice registered nurse is both  authorized to do so by the Nevada State Board of Nursing in a license issued by that Board and  the nurse applies for, pays for and obtains a certificate of registration from the Nevada State Board of Pharmacy.  Thus the Nevada Board of Pharmacy may refuse to issue a certificate of registration, even if the Board of Nursing has approved it.  NRS 639.2351(2)(b).

This is for informational purposes only.  No client relationship is created by the posting or reading of this information.  To obtain legal advice, you must consult with a Nevada licensed attorney.

NV Leading in Nursing Just Culture – a Retrospective on NSBON v. Merkeley

Back in 1997, the Nevada Supreme Court reversed a case finding nurse Merkely responsible for a patient’s pain levels when it was unclear who was ordering the morphine.  Here is a look at that 1997 case.

TEXT OF OPINION:

Respondent Timothy Merkley (“Merkley”) is a registered nurse licensed by Appellant, the Nevada State Board of Nursing (the “Board”), and formerly employed at Saint Mary’s Regional Hospital.   On April 17, 1993, Merkley provided nursing care for a terminally ill patient, Mr. Bayless.   Merkley was subsequently charged with unprofessional conduct in connection with this treatment, and the Board suspended his nursing license for one year.   The Board’s order was reversed by the district court.   The Board now appeals the decision of the district court.

We conclude that the district court erred in finding that the Board’s decision was arbitrary and capricious and unsupported by substantial evidence.   We further conclude that several of the Board’s factual findings were in error.   We therefore reverse the district court’s order and remand this matter to the district court with instructions to remand to the Board so that it can determine appropriate discipline in light of this opinion.

STATEMENT OF THE FACTS

On April 17, 1993, Wendy Smedes (“Smedes”), a registered nurse, was on the 2:15 p.m.-10:45 p.m. shift at Saint Mary’s Regional Hospital (“St. Mary’s”) and was responsible for patient Leon Bayless (“Mr. Bayless”).   Mr. Bayless had peripheral vascular disease, was in terminal condition, and had chosen a “do not resuscitate” policy.   He was ischemic below his waist.   Smedes and the nursing staff had been instructed to make Mr. Bayless as comfortable as possible.   Mr. Bayless’ son, Dr. Joseph Bayless (“Dr. Bayless”), an anesthesiologist at the hospital, was present in the room during these hours, as was Mr. Bayless’ wife (“Mrs. Bayless”), and Dr. Bayless’ wife, both of whom were nurses.

At 5:00 p.m. Smedes administered Percocet, a pain medication, to Mr. Bayless.   However, it became apparent to Smedes and to Mr. Bayless’ family that the Percocet was not relieving his pain.   According to Dr. Bayless, his father was trying to tear out his abdomen and genitals, and both his father and mother begged Dr. Bayless to take the pain away.

Smedes telephoned the office of Dr. Schultz, the doctor in charge of Mr. Bayless’ case, and reached Dr. Shapiro, who was on call that afternoon.   Dr. Shapiro gave Smedes an order for Morphine to be administered by intravenous drip (“IV”) at ten milligrams per hour, with a three-milligram loading dose.   According to Dr. Bayless, Dr. Shapiro asked him if the dosage was adequate, and it was understood that this order was a “starting point” and that the dosage was less important than Mr. Bayless’ comfort.

Merkley, a registered nurse licensed by the Board, was the clinical leader responsible for helping other nurses that afternoon.   While Smedes was occupied with other patients, Merkley picked up a solution containing 125 milligrams of Morphine from the pharmacy.   Dr. Bayless testified that he hung the bag at approximately 6:20 p.m. and “let it run wide open” until his father said that he felt better.   About a half hour later, Smedes verified that it was hung properly.   She checked on the patient again at approximately 9:30 p.m., at which time Mr. Bayless’ respiratory rate appeared normal and the IV appeared to be flowing at the expected rate.   The IV was timed to run over twelve hours.

At 11:30 p.m. Merkley went into Mr. Bayless’ room in response to an alarm and found the Morphine bag empty.   Dr. Bayless, noting that his father was showing signs of discomfort, told Merkley to obtain a second bag.   On his way to the pharmacy, Merkley sought his supervisor, Aletha Hartwig (“Hartwig”), and apprised her of his concern about the increased IV rate.   Hartwig told him to fill out a “variance report.”

Dr. Bayless offered to write an order for the second bag of Morphine, but Merkley refused to accept an order from a family member.   Therefore, Dr. Bayless telephoned another anesthesiologist, Dr. Calvin Smith (“Dr. Smith”), who was on call within the hospital.   Dr. Smith ordered Merkley to resume Dr. Shapiro’s order.   This telephone order was made at approximately 12:00 a.m., but Merkley back-timed it to appear as if it were made at 9:00 p.m.   Mr. Bayless received approximately 100 milligrams of Morphine from the second bag before he was declared dead on April 18th at 1:00 a.m.   Mr. Bayless’ death certificate lists his cause of death as cardiorespiratory failure due to gangrene of the left lower extremity due to severe arteriosclerosis.

Merkley and a second nurse completed a variance report on April 17.   On April 23, Merkley asked Linda Charlebois (“Charlebois”), the manager of his nursing unit, if she had any questions about it.   Subsequently, the hospital commenced an investigation against Merkley and the other nurse, as a result of which both nurses were fired.   The hospital notified the Board of the investigation, and the Board filed an administrative complaint against Merkley charging him with gross negligence and unprofessional conduct pursuant to NRS 632.320 and NAC 632.890.

NRS 632.320 provides, in relevant part:

The board may deny, revoke or suspend any license or certificate applied for or issued pursuant to this chapter, or take other disciplinary action against a licensee or holder of a certificate, upon determining that he:

4.  Is unfit or incompetent by reason of gross negligence or recklessness in carrying out the usual nursing functions.

7. Is guilty of unprofessional conduct ․

The Board concluded that Merkley committed four acts constituting unprofessional conduct pursuant to NRS 632.320 and NAC 632.890:  (1) inaccurate recording, falsifying or otherwise altering or destroying records;  (2) failing to collaborate with other members of a health care team as necessary to meet the health needs of a patient;  (3) failing to observe the conditions, signs and symptoms of a patient, to record the information or to report significant changes to the appropriate persons;  and (4) failing to perform nursing functions in a manner consistent with established or customary standards.   Accordingly, the Board suspended Merkley’s license to practice nursing for one year, then stayed the suspension, placing Merkley on probation for one year.

Merkley petitioned the district court for judicial review, which was granted by an order dated August 22, 1995.   The district court determined that the Board’s decision was arbitrary and capricious and unsupported by substantial evidence.   The court noted that Charlebois had failed to interview Drs. Smith and Bayless, and had determined without any basis in fact that Mr. Bayless received an inappropriate amount of morphine and substandard care.   The district court further noted that Charlebois and Saint Mary’s had delayed acting upon the variance report and had failed to notify the coroner’s office that Mr. Bayless’ death involved unusual circumstances until after his body had been cremated.   The court noted that the Board imposed a standard of care that is not established, stating, “There is no indication in the record of any guidelines establishing a set of circumstances under which a nurse is required to question or challenge a physician’s decision or to determine which physician has the authority to treat a particular patient.”   Finally, the district court noted that there was ample evidence that Mrs. Bayless wanted Dr. Bayless to treat her husband.

The Board timely appeals the order of the district court.

DISCUSSION

The Board argues that substantial evidence supports its decision to discipline Merkley;  therefore, the district court committed reversible error by failing to affirm the Board’s decision.   The Board contends that the district court improperly ignored factual findings and substituted its judgment for that of the Board.

This court’s role in reviewing an administrative decision is identical to that of the district court.  Ruggles v. Public Service Comm’n, 109 Nev. 36, 40, 846 P.2d 299, 301 (1993) (citation omitted).   This court must affirm a decision by the agency that is supported by substantial evidence.  Mishler v. State, Bd. of Med. Examiners, 109 Nev. 287, 292, 849 P.2d 291, 294 (1993).   “When the factual findings of the administrative agency are supported by the evidence, they are conclusive, and the district court is limited to a determination of whether the agency acted arbitrarily or capriciously.”  Id. at 292, 849 P.2d at 294 (citation omitted);  see NRS 233B.135(3).   However, this court may set aside the agency’s decision if the agency has prejudiced substantial rights.  Mishler, 109 Nev. at 292, 849 P.2d at 294.

NAC 632.890 put Merkley on notice of the acts that constitute professional misconduct, and the Board found that he committed four of these acts.   First, the Board found that he falsified a record by back-timing the second order for Morphine.   This finding is supported by the record.

Second, the Board found that Merkley failed to collaborate with other members of a health care team as necessary to meet the health needs of a patient.   The Board sanctioned Merkley for failing to obtain an order for the second bag of Morphine from Dr. Shapiro, the physician of record.   Charlebois, and Kathy Ruebusch (“Ruebusch”), a clinical nurse, both testified that they would never take an order from a member of a patient’s family.

However, Merkley did not accept the order for the second bag of Morphine from Dr. Bayless, but accepted it from Dr. Smith.   Moreover, Dr. Bayless testified that no Nevada policy prevented him from treating his own family or from giving the order.   He testified that he was in the best position to attend to his father’s needs because he was at his father’s bedside the entire day, and was an anesthesiologist with responsibilities on that floor of the hospital.   He explained that Dr. Shapiro was deferring to his judgment, that he was hired by his mother and father to provide medical care, and that the only reason he was not considered a member of the medical team was that Merkley did not allow him to write on Mr. Bayless’ chart.

Also, Dr. Bayless testified that Dr. Smith’s anesthesiology team provided anesthesia when Mr. Bayless’ leg was amputated, and therefore was part of Mr. Bayless’ medical group.   Dr. Bayless explained that it was not out of the ordinary to call Dr. Smith for the order, and that contacting Dr. Shapiro on a Saturday night would have been a “nuisance call.”   Dr. Smith testified that the second order was proper.   Both doctors testified that it was appropriate for Mr. Bayless to receive tremendous quantities of Morphine, and that he had an extraordinarily high tolerance for the drug.   Thus, the evidence shows that Mr. Bayless’ health needs were met, and that Merkley acted in an appropriate manner.

Third, the Board found that Merkley failed to observe, record and report Mr. Bayless’ condition.   In the Board’s deliberations, Board members stated that flicking Mr. Bayless’ toe, when he had a necrotic foot, did not constitute an adequate assessment of Mr. Bayless’ condition.   The Board also criticized Merkley’s failure to notify Dr. Shapiro of the increased dosage of Morphine.

Merkley testified that because he was ordered to provide only comfort care, further assessment was unwarranted.   Both he and Smedes checked Mr. Bayless’ respirations, which did not indicate a drug overdose.   The other nurse subject to discipline testified that Mr. Bayless’ respiration was normal and further assessment was not needed.   Moreover, Dr. Bayless was monitoring Mr. Bayless during the entire period in question and indicated that he did not want his father to be disturbed by a full assessment when he had finally been made comfortable.   We conclude that the Board’s finding that Merkley failed to observe, record and report Mr. Bayless’ condition is not supported by substantial evidence in the record.

Fourth, the Board sanctioned Merkley for failing to follow customary standards.   Charlebois and Ruebusch testified that it was standard practice to call the attending physician in such circumstances and to refuse orders from members of a patient’s family.   However, the hospital’s policy regarding treatment of family members was not put in writing until after the incident with Mr. Bayless.

Charlebois, who commenced the investigation against Merkley, believed that Mr. Bayless’ death was under suspicious circumstances.   She testified, “[T]here is a line between providing comfort and deliberately administering or allowing to be administered what we all know as nurses is a fatal dose of Morphine.”   She testified that Merkley should have administered Narcan to reverse the effects of the Morphine.   However, two qualified anesthesiologists strongly disagreed with this assessment.   Dr. Bayless was severely critical of the use of Narcan, stating that it would have caused his father to be wide awake and in excruciating pain.   Dr. Smith testified that a strong argument could be made that the increased dosage was life-prolonging.   Moreover, Dr. Bayless’ family commended Merkley’s actions.   Mrs. Bayless, formerly the Secretary of the Board, was shocked when Merkley was reprimanded.

The Board has wide discretion to discipline and ensure the competence of its licensees.   Nonetheless, as this court noted in Mishler, “With respect to a disciplinary proceeding against a licensed professional, this court has an ‘obligation ․ to look beyond the label given to a conviction to the true nature of the facts, in order to determine whether the underlying circumstances of the conviction warrant discipline.’ ”  109 Nev. at 296, 849 P.2d at 296 (citing State Bar of Nevada v. Claiborne, 104 Nev. 115, 211, 756 P.2d 464, 526 (1988)).   Here, the record does not support the Board’s findings that Merkley failed to collaborate with other members of a health care team as necessary to meet the health needs of a patient, that Merkley failed to observe, record and report Mr. Bayless’ condition, or that Merkley’s conduct fell below the standards of practice for nurses in Nevada.   The record indicates that Merkley acted to ensure that Mr. Bayless’ health needs were met and that Mr. Bayless received a standard of care consistent with his and his family’s wishes.1  In view of the circumstances of this case, we conclude that the Board prejudiced Merkley’s substantial rights by suspending his license to practice nursing.

CONCLUSION

We conclude that the Board did not abuse its discretion in determining that Merkley violated NRS 632.320 and NAC 632.890 by back-timing an order for Morphine.   We therefore reverse the order of the district court, which reversed the decision of the Board.   We further conclude that the Board’s findings that Merkley failed to collaborate with other members of a health care team as necessary to meet the health needs of a patient, that Merkley failed to observe, record and report Mr. Bayless’ condition, and that Merkley’s conduct fell below the standards of practice for nurses in Nevada, are not supported by substantial evidence in the record.   We therefore remand this matter to the district court with instructions to remand to the Board so that the Board can determine appropriate discipline in light of this opinion.

FOOTNOTES

1.   See Comment, The Nurse as Patient Advocate:  Is There a Conflict of Interest?, 29 Santa Clara L.Rev. 391, 394 (1989) (discussing how the lack of usable guidelines which would enable nurses to resolve conflicts between their ethical duties to patients and legal duties to employers and physicians creates confusion over what behavior is sanctionable);  see also Elizabeth Harrison Hadley, Nurses and Prescriptive Authority:  A Legal and Economic Analysis, 15 Am.J.L. & Med. 245 (1989) (criticizing state statutes defining the practice of nursing that fail to recognize that nurses routinely perform tasks requiring independent judgment, therefore putting nurses unfairly at risk of sanctions).

PER CURIAM.

The Joint Commission: Regulatory Agency or Private Organization?

Is you is or is you ain’t my baby? – Louis Jordan, Chris Barber

A key private company that teaches nursing students thinks it is a regulatory agency.  One of its exercises asks, “A nurse is explaining the differences among the various agencies that address health care. The nurse should note that which of the following are health care regulatory agencies? (select all that apply)”.  Content Mastery Series, Fundamentals for Nursing, Ed. 8.0 (2013).

The possible answers include: The Joint Commission on Nursing, State boards of nursing and the Food and Drug Administration (FDA).  Surprisingly, all three are the correct answer according to ATI Testing.  The second two are obvious regulatory agencies.  State boards of nursing can also have judicial powers.

The Joint Commission (TJC), formerly known as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), does not consider itself to be a regulatory agency.  It calls itself “an independent not-for-profit organization”.1

TJC has a president and chief operating officer.2  Regulatory agencies do not have presidents and chief operating officers.  They are governed by appointees of elected officials.

What is the Cause of Confusion?

TJC accredits and certifies that programs are in compliance with its standards.3  Regulatory agencies then incorporate that accreditation or compliance into their regulations.  In Nevada, a hospital can operate without TJC accreditation.  Such a hospital would then be inspected on-site annually by the Nevada state agency, the Department of Health and Human Services.  NAC 449.310.  If the hospital is accredited by TJC, then no such inspection is required.

The Nevada government is outsourcing quality control to a private organization in the TJC.  Most, if not all, of U.S. states do.

Another way Nevada controls hospitals via TJC is by determining what medical services will by paid for by government-funded insurance.  For the treatment of abuse of alcohol and drugs, it will be paid if licensed by the Health Division of DHHS and accredited by TJC.  NRS 689A.046.

Therefore, TJC is not a regulatory agency, at least not in Nevada.

 

 

1 http://www.jointcommission.org/about_us/fact_sheets.aspx

2 http://www.jointcommission.org/about_us/joint_commission_officers.aspx

3 http://www.jointcommission.org/state_recognition/state_recognition.aspx