WSR 17-03-084 PROPOSED RULES DEPARTMENT OF HEALTH (Nursing Care Quality Assurance Commission) [Filed January 12, 2017, 3:27 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-12-038.
Title of Rule and Other Identifying Information: WAC 246-840-730 and 246-840-750 through 246-840-780 and related sections. The nursing care quality assurance commission (NCQAC) is proposing revising existing rules to reflect current patient safety standards regarding substance abuse disorders and to update the mandatory reporting rules.
Hearing Location(s): Department of Health, Point Plaza East, 310 Israel Road South, Room 152/153, Tumwater, WA 98501, on March 10, 2017, at 1:00 p.m.
Date of Intended Adoption: March 10, 2017.
Submit Written Comments to: Carole Reynolds, NCQAC, Washington Department of Health, P.O. Box 47864, Olympia, WA 98504-7864, email https://fortress.wa.gov/doh/policyreview, fax (360) 236-4738, by March 3, 2017.
Assistance for Persons with Disabilities: Contact Carole Reynolds by March 3, 2017, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed rules is to update and clarify the mandatory reporting rules and the rules related to NCQAC's substance abuse monitoring program. NCQAC proposes to adopt by reference the secretary of health's mandatory reporting rules which will streamline the requirements among professions. The current nursing rules were adopted in 1997 and are out-of-date. NCQAC completed a review of the substance abuse monitoring program and, based on the findings, seeks to update the program and internal policies. The proposed rules reflect the updates that implement best practices in substance abuse monitoring.
Reasons Supporting Proposal: The new rules clarify and streamline the nursing mandatory reporting requirements by making them the same as for the secretary of health professions. This eliminates confusion for nurses, other health care providers, and employers about what must be reported. The proposed rules also update the current nineteen year old substance abuse rule language by addressing changes in substance abuse monitoring, best practices and current patient safety standards.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: NCQAC, governmental.
Name of Agency Personnel Responsible for Drafting: Carole Reynolds, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4785; Implementation and Enforcement: John Furman, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-2882.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule would not impose more than minor costs on businesses in an industry.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Carole Reynolds, NCQAC, Washington Department of Health, P.O. Box 47864, Olympia, WA 98504-7864, phone (360) 236-4785, fax (360) 236-4738, email carole.reynolds@doh.wa.gov.
January 12, 2017
Paula R. Meyer, MSN, RN, FRE
Executive Director, NCQAC
AMENDATORY SECTION (Amending WSR 00-01-186, filed 12/22/99, effective 1/22/00)
WAC 246-840-730 Mandatory reporting.
((Mandatory reporting assists the nursing care quality assurance commission (nursing commission) in protecting the public health and safety through the discovery of unsafe or substandard nursing practice or conduct. These rules are intended to define the information that is to be reported and the obligation of nurses and others to report.
The nursing commission does not intend every minor nursing error to be reported or that mandatory reporting serve as a substitute for employer-based disciplinary action.
Who must make reports and what must be reported to the nursing commission?
(1) Any person, including, but not limited to, registered nurses, practical nurses, advanced registered nurse practitioners, health care facilities and governmental agencies shall always report the following, except as provided for in subsections (2) and (3) of this section:
(a) Information that a nurse may not be able to practice with reasonable skill and safety as a result of a mental or physical condition;
(b) Information regarding a conviction, determination or finding, including employer-based disciplinary action, that a nurse has committed an act that would constitute unprofessional conduct, as defined in RCW 18.130.180, including violations of chapter 246-840 WAC, including, but not limited to:
(i) Conviction of any crime or plea of guilty, including crimes against persons as defined in chapter 43.830 RCW [RCW 43.43.830], and crimes involving the personal property of a patient, whether or not the crime relates to the practice of nursing;
(ii) Conduct which leads to dismissal from employment for cause related to unsafe nursing practice or conduct in violation of the standards of nursing;
(iii) Conduct which reasonably appears to be a contributing factor to the death of a patient;
(iv) Conduct which reasonably appears to be a contributing factor to the harm of a patient that requires medical intervention;
(v) Conduct which reasonably appears to violate accepted standards of nursing practice and reasonably appears to create a risk of physical and/or emotional harm to a patient;
(vi) Conduct involving a pattern of repeated acts or omissions of a similar nature in violation of the standards of nursing that reasonably appears to create a risk to a patient;
(vii) Drug trafficking;
(viii) Conduct involving the misuse of alcohol, controlled substances or legend drugs, whether or not prescribed to the nurse, where such conduct is related to nursing practice or violates any other drug or alcohol-related nursing commission law;
(ix) Conduct involving sexual contact with a patient under RCW 18.130.180(24) or other sexual misconduct in violation of nursing commission law under WAC 246-840-740;
(x) Conduct involving patient abuse, including physical, verbal and emotional;
(xi) Conduct indicating unfitness to practice nursing or that would diminish the nursing profession in the eyes of the public;
(xii) Conduct involving fraud related to nursing practice;
(xiii) Conduct involving practicing beyond the scope of the nurse's license;
(xiv) Nursing practice, or offering to practice, without a valid nursing permit or license, including practice on a license lapsed for nonpayment of fees;
(xv) Violation of a disciplinary sanction imposed on a nurse's license by the nursing commission.
(2) Persons who work in federally funded substance abuse treatment programs are exempt from these mandatory reporting requirements to the extent necessary to comply with 42 C.F.R. Part 2.
(3) Persons who work in approved substance abuse monitoring programs under RCW 18.130.175 are exempt from these mandatory reporting rules to the extent required to comply with RCW 18.130.175(3) and WAC 246-840-780(3).
How is a report made to the nursing commission?
(4) In providing reports to the nursing commission, a person may call the nursing commission office for technical assistance in submitting a report. Reports are to be submitted in writing and include the name of the nurse, licensure identification, if available, the name of the facility, the names of any patients involved, a brief summary of the specific concern which is the basis for the report, and the name, address and telephone number of the individual submitting the report.
(5) Failure of any licensed nurse to comply with these reporting requirements may constitute grounds for discipline under chapter 18.130 RCW.
What are the criteria for whistleblower protection?
(6) Whistleblower criteria is defined in chapter 246-15 WAC and RCW 43.70.075.)) Any person including, but not limited to, a registered nurse, a licensed practical nurse, advanced registered nurse practitioner, health care facility, or governmental agency shall always report in compliance with the uniform mandatory reporting rules are found in WAC 246-16-200 through 246-16-270.
AMENDATORY SECTION (Amending WSR 97-13-100, filed 6/18/97, effective 7/19/97)
WAC 246-840-750 Philosophy governing voluntary substance abuse monitoring programs.
The nursing care quality assurance commission (commission) recognizes the need to establish a means of ((proactively)) providing early recognition and treatment options for licensed practical nurses or registered nurses whose competency may be impaired due to the abuse of drugs or alcohol. The commission intends that such nurses be treated and their treatment monitored so that they can return to or continue to practice their profession in a ((way which)) manner, that safeguards the public. ((To accomplish this the commission shall approve voluntary substance abuse monitoring programs and shall)) The Washington health professional services (WHPS) program is the commission's approved substance abuse monitoring program under RCW 18.130.175. The commission may refer licensed practical nurses or registered nurses ((impaired by substance abuse to approved programs as an alternative to instituting disciplinary proceedings as defined in)) to WHPS as either an alternative to or in connection with disciplinary actions under RCW 18.130.160.
AMENDATORY SECTION (Amending WSR 08-11-019, filed 5/12/08, effective 6/12/08)
WAC 246-840-760 Definitions of terms used in WAC 246-840-750 through 246-840-780.
(((1) "Approved substance abuse monitoring program" or "approved monitoring program" is a program the commission has determined meets the requirements of the law and the criteria established by the commission in WAC 246-840-770. The program enters into a contract with nurses who have substance abuse problems regarding the required components of the nurse's recovery activity and oversees the nurse's compliance with these requirements. Substance abuse monitoring programs do not provide evaluation or treatment to participating nurses.
(2) "Contract" is a comprehensive, structured agreement between the recovering nurse and the approved monitoring program wherein the nurse consents to comply with the monitoring program and its required components of the nurse's recovery activity.
(3) "Approved treatment facility" is a facility approved by the division of alcohol and substance abuse, department of social and health services according to chapter 70.96A RCW or RCW 69.54.030 to provide concentrated alcoholism or drug treatment if located within Washington state. Drug and alcohol treatment programs located out-of-state must be equivalent to the standards required for approval under chapter 70.96A RCW or RCW 69.54.030.
(4) "Substance abuse" means the impairment of a nurse's professional services by an addiction to, a dependency on, or the use of alcohol, legend drugs, or controlled substances.
(5) "Aftercare" is that period of time after intensive substance abuse treatment that provides the nurse and the nurse's family with group or individual counseling sessions, discussions with other families, ongoing contact and participation in self-help groups and ongoing continued support of treatment program staff.
(6) "Nurse support group" is a group of nurses meeting regularly to support the recovery of its members from substance abuse issues. The group provides a confidential setting with a trained and experienced nurse facilitator in which nurses may safely discuss drug diversion, licensure issues, return to work and other professional issues related to recovery.
(7) "Twelve-step groups" are groups such as alcoholics anonymous, narcotics anonymous, and related organizations based on a philosophy of anonymity, belief in a power outside of oneself, peer group association, and self-help.
(8) "Random drug screens" are laboratory tests to detect the presence of drugs of abuse in body fluids which are performed at irregular intervals not known in advance by the person to be tested.)) The definitions in this section apply throughout WAC 246-840-750 through 246-840-780 unless the text clearly requires otherwise.
(1) "Approved treatment facility" is a facility certified by the division of behavioral health and recovery (DBHR) department of social and health services, according to chapters 388-877 through 388-877B WAC that meets the defined standards. Drug and alcohol treatment facilities located out-of-state must have substantially equivalent standards.
(2) "Continuing care" means the phase of treatment following acute treatment. Common elements of continuing care include relapse prevention and self-help group participation.
(3) "Monitoring contract" is a comprehensive, structured agreement between the recovering nurse and WHPS defining the requirements of the nurse's program participation.
(4) "Peer support group" is a professionally facilitated support group designed to support recovery and re-entry into practice.
(5) "Random drug screens" means laboratory tests to detect the presence of drugs of abuse in body fluids and other biologic specimens that are performed at irregular intervals not known in advance by the person to be tested.
(6) "Referral contract" is a formal agreement between the commission and the nurse to comply with the requirements of the WHPS program in lieu of discipline.
(7) "Self-help groups" means groups or fellowships providing support for people with substance use disorder to support their sobriety and recovery.
(8) "Substance abuse" or "substance use disorder" means a chronic progressive illness that involves the use of alcohol or other drugs to a degree that it interferes with the functional life of the registrant/licensee, as manifested by health, family, job (professional services), legal, financial, or emotional problems.
(9) "Washington health professional services (WHPS)" is the approved substance abuse monitoring program as described in RCW 18.130.175 that meets criteria established by the commission. WHPS does not provide evaluation or treatment services.
AMENDATORY SECTION (Amending WSR 97-13-100, filed 6/18/97, effective 7/19/97)
WAC 246-840-770 Approval of substance abuse monitoring programs.
((The commission will approve the monitoring program(s) which will participate in the commission's substance abuse monitoring program. A monitoring program approved by the commission may be contracted with an entity outside the department but within the state, out-of-state, or a separate structure within the department.
(1) The approved monitoring program will not provide evaluation or treatment to the participating nurses.
(2) The approved monitoring program staff must have the qualifications and knowledge of both substance abuse and the practice of nursing as defined in this chapter to be able to evaluate:
(a) Clinical laboratories;
(b) Laboratory results;
(c) Providers of substance abuse treatment, both individuals and facilities;
(d) Nurses' support groups;
(e) The nursing work environment; and
(f) The ability of the nurse to practice with reasonable skill and safety.
(3) The approved monitoring program will enter into a contract with the nurse and the commission to oversee the nurse's compliance with the requirements of the program.
(4) The approved monitoring program may make exceptions to individual components of the contract on an individual basis.
(5) The approved monitoring program staff will determine, on an individual basis, whether a nurse will be prohibited from engaging in the practice of nursing for a period of time and restrictions, if any, or the nurse's access to controlled substances in the work place.
(6) The approved monitoring program shall maintain records on participants.
(7) The approved monitoring program will be responsible for providing feedback to the nurse as to the acceptability of treatment progress.
(8) The approved monitoring program shall report to the commission any nurse who fails to comply with the requirement of the monitoring program.
(9) The approved monitoring program shall provide the commission with a statistical report on the program, including progress of participants, at least annually.
(10) The approved monitoring program shall receive from the commission guidelines)) The commission uses WHPS as the approved monitoring program.
(1) WHPS will:
(a) Employ staff with the qualifications and knowledge of both substance abuse and the practice of nursing as defined in this chapter to be able to evaluate:
(i) Clinical laboratories;
(ii) Laboratory results;
(iii) Providers of substance abuse treatment, both individuals and facilities;
(iv) Peer support groups;
(v) The nursing work environment; and
(vi) The ability of the nurse to practice with reasonable skill and safety.
(b) Enter into a monitoring contract with the nurse to oversee the nurse's required recovery activities. Exceptions may be made to individual components of the contract as needed.
(c) Determine, on an individual basis, whether a nurse will be prohibited from engaging in the practice of nursing for a period of time and restrictions, if any, on the nurse's access to controlled substances in the workplace.
(d) Maintain case records on participating nurses.
(e) Report to the commission any nurse who fails to comply with the requirements of the monitoring program as defined by the commission.
(f) Provide the commission with an annual statistical report.
(2) The commission approves WHPS's procedures on treatment, monitoring, and limitations on the practice of nursing for those participating in the program.
AMENDATORY SECTION (Amending WSR 97-13-100, filed 6/18/97, effective 7/19/97)
WAC 246-840-780 Participants entering the approved substance abuse monitoring program must agree to the following conditions.
(((1)(a) The nurse shall undergo a complete physical and psychosocial evaluation before entering the approved monitoring program. This evaluation will be performed by health care professional(s) with expertise in chemical dependency. The person(s) performing the evaluation shall not also be the provider of the recommended treatment.
(b) The nurse shall enter into a contract with the commission and the approved substance abuse monitoring program to comply with the requirements of the program which shall include, but not be limited to:
(i) The nurse will undergo intensive substance abuse treatment in an approved treatment facility.
(ii) The nurse will agree to remain free of all mind-altering substances including alcohol except for medications prescribed by an authorized prescriber, as defined in RCW 69.41.030 and 69.50.101.
(iii) The nurse must complete the prescribed aftercare, which may include individual and/or group psychotherapy.
(iv) The nurse must cause the treatment counselor(s) to provide reports to the approved monitoring program at specified intervals. Reports shall include treatment prognosis and goals.
(v) The nurse will submit to random drug screening as specified by the approved monitoring program.
(vi) The nurse will attend nurses' support groups facilitated by a nurse and/or twelve-step group meetings as specified by the contract.
(vii) The nurse will comply with specified employment conditions and restrictions as defined by the contract.
(viii) The nurse shall sign a waiver allowing the approved monitoring program to release information to the commission if the nurse does not comply with the requirements of this contract.
(c) The nurse is responsible for paying the costs of the physical and psychosocial evaluation, substance abuse treatment, and random drug screens.
(d) The nurse may be subject to disciplinary action under RCW 18.130.160 if the nurse does not participate in the approved monitoring program, does not comply with specified employment restrictions, or does not successfully complete the program.
(2) A nurse who is not being investigated by the commission or subject to current disciplinary action or currently being monitored by the commission for substance abuse may voluntarily participate in the approved substance abuse monitoring program without being referred by the commission.
(a) The nurse shall undergo a complete physical and psychosocial evaluation before entering the approved monitoring program. This evaluation will be performed by health care professional(s) with expertise in chemical dependency. The person(s) performing the evaluation shall not also be the provider of the recommended treatment.
(b) The nurse shall enter into a contract with the approved substance abuse monitoring program to comply with the requirements of the program which shall include, but not be limited to:
(i) The nurse will undergo intensive substance abuse treatment in an approved treatment facility.
(ii) The nurse will agree to remain free of all mind-altering substances including alcohol except for medications prescribed by an authorized prescriber as defined in RCW 69.41.030 and 69.50.101.
(iii) The nurse must complete the prescribed aftercare program of the intensive treatment facility, which may include individual and/or group psychotherapy.
(iv) The nurse must cause the treatment counselor(s) to provide reports to the approved monitoring program at specified intervals. Reports shall include treatment prognosis and goals.
(v) The nurse will submit to random drug screening as specified by the approved monitoring program.
(vi) The nurse will attend nurses' support groups facilitated by a nurse and/or twelve-step group meetings as specified by the contract.
(vii) The nurse will comply with employment conditions and restrictions as defined by the contract.
(viii) The nurse shall sign a waiver allowing the approved monitoring program to release information to the commission if the nurse does not comply with the requirements of this contract.
(c) The nurse is responsible for paying the costs of the physical and psychosocial evaluation, substance abuse treatment and random drug screens.
(3) The treatment and pretreatment records of license holders referred to or voluntarily participating in approved monitoring programs shall be confidential, shall be exempt from RCW 42.17.250 through 42.17.450, and shall not be subject to discovery by subpoena or admissible as evidence except for monitoring records reported to the disciplinary authority for cause as defined in subsections (1) and (2) of this section. Records held by the commission under this section shall be exempt from RCW 42.17.250 through 42.17.450 and shall not be subject to discovery by subpoena except by the license holder.)) (1) Any nurse participating in the substance abuse monitoring program must:
(a) Undergo a complete substance use disorder evaluation. This evaluation will be performed by health care professional(s) with expertise in chemical dependency.
(b) Enter into a monitoring contract with WHPS which includes, but is not limited to, the following terms, which require the nurse to:
(i) Undergo any recommended level of treatment in an approved treatment facility, including continuing care;
(ii) Abstain from all mind-altering substances including alcohol and cannabis except for medications prescribed by an authorized prescriber, as defined in RCW 69.41.030 and 69.50.101;
(iii) Cause the treatment counselor(s) to provide reports to the approved monitoring program at specified intervals;
(iv) Attend peer support group, or self-help group meetings, or both as specified by WHPS;
(v) Complete random or for-cause drug screening as specified by WHPS;
(vi) Comply with specified employment conditions and restrictions as defined by the monitoring contract;
(vii) Agree in writing to allow WHPS to release information to the commission if the nurse does not comply with any contract requirements or is unable to practice with reasonable skill and safety;
(viii) Pay the costs of any required evaluations, substance abuse treatment, peer support group, random drug screens, and other personal expenses incurred in relation to the monitoring program;
(ix) Sign any requested release of information authorizations.
(2) When referred to WHPS in lieu of discipline, the nurse must enter into a referral contract with the commission. The commission may take disciplinary action against the nurse's license under RCW 18.130.160 based on any violation by the nurse of the referral contract.
(3) A nurse may voluntarily participate in WHPS in accordance with RCW 18.130.175(2) without first being referred to WHPS by the commission.
|