Montana DLI - Board of Nursing

DECLARATORY RULINGS

Declaratory Rulings are rulings the Board has made in response to specific questions.
This is a legal process and they go through the rule-making procedures.
Once a Declaratory Ruling is made, it has the same scope and effect as the laws and rules.

TOPIC	DATE
RNs as First Assistant in Surgery	5/28/1992
LPNs and Rho-Gam Injections	6/15/1992
PICC Lines	8/11/1993
LPN Verbal Orders	1/4/1994
Sharp Wound Debridement by RNs	2/17/1994
Artificial Rupture of Membranes by RNs	4/29/1994
IV Conscious Sedation by RNs	1/11/1995
Pronouncement of Death by RNs	2/23/1995
Clinical Lab Testing by LPNs	5/18/1995
Regional Analgesia through Epidural Catheter by Non-Anesthetist RN	12/19/1996
Performance of Mixed Venous O2 Saturation & Hemoglobins by RN	3/16/1998
Performance of Pelvic Examinations by a Professional Nurse - RN	3/16/1998
Transthoracic Echocardiograms: Air Agitated Saline	7/17/2000
Vaginal Speculums - Forensic Evidence - RNs	9/25/2000
Epidural Analgesia in Obstetrical Setting	9/25/2000
Clinical Lab Testing by RNs	12/22/2000
Microdermabrasion by RNs in Independent Setting	8/13/2001

DECLARATORY RULING: FIRST ASSISTANTS IN SURGERY

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In the matter of the petition for declaratory ruling on the use of registered nurses as first assistants in surgery

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On February 13, 1992, the Board of Nursing filed a notice of Petition for Declaratory Ruling at page 241, issue number 3, 1992 Montana Administrative Register, regarding the use of registered nurses as first assistants in surgery. The Petitioner is Marilyn B. Meyers, Operating Room Manager of Kalispell Regional Hospital.

The Board of Nursing received public comments and considered the petition on February 28, 1992, in a regular meeting of the Board.

The facts upon which this ruling will be made are as follows:
The Petitioner represents Kalispell Regional Hospital. The hospital is considering the use of registered nurses as first assistants in surgery since reimbursement guidelines are being amended to not authorize use of surgeons as first assistants. The RN first assistant is specifically trained to assist the surgeon in preoperative, intraoperative and postoperative tasks as directed by the surgeon. The Association of Operating Room Nurses has established standards for education and training of those nurses acting as first assistants. The RN first assistant may perform such tasks as tissue handling, providing exposure, using instruments, suturing and providing hemostasis.

An informal statement of the Board of Nursing issued in July, 1986, indicated that a registered professional nurse acting as first assistant in surgery was within the scope and practice of a registered professional nurse. The Petitioner seeks to have that position clarified and confirmed in this formal Petition for Declaratory Ruling.

The question presented for declaratory ruling is whether the use of registered nurses as first assistants in surgery falls within their scope of practice as defined by section 37-8-102 (3) (a), MCA.

The petitioner contends that registered nurses acting as first assistants in surgery are performing within their scope of practice.

The Board of Nursing agrees. Section 37-8-102 (3) (a) defines the "practice of professional nursing" to include "the administration of medications and treatments prescribed by physicians, dentists, osteopaths or podiatrists authorized by state law to prescribe medications and treatments." The role of an RN first assistant in preoperative preparation, intraoperative assistance and postoperative duties comes within the statute as administration of treatments authorized by physicians. An RN first assistant is specifically educated and trained for the role and acts under the direction of the surgeon. An institutional policy should specify the qualifications and training necessary and the tasks which the RN is authorized to perform. The Association of Operating Room Nurses and other credentialling entities set standards for education and training.

The Board of Nursing hereby issues this Declaratory Ruling that, under the facts presented, the registered nurse is practicing within the scope of practice defined in section 37-8-102 (3) (a), MCA, when performing as a first assistant in surgery under the following conditions:

a. The nurse has the training, knowledge, skill and ability to perform this function in accordance with the Association of Operating Room Nurses' standards or equivalent standards;

b. The surgeon is in attendance providing direct supervision and is responsible for the patient; and

c. The institution employing the RN as first assistant has a specific written policy regarding the circumstances in which registered professional nurses may perform as first assistants and specifying the qualifications and training necessary to perform as first assistants.

Any interested parties may request judicial review of this Declaratory Ruling by filing a petition for judicial review in the District Court of the state of Montana in and for Lewis and Clark County within thirty (30) days of this ruling pursuant to sections 2-4-501 and 2-4-702, MCA.

Dated this 28th day of May, 1992.

DECLARATORY RULING: LPN - RHOGAM INJECTIONS

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In the matter of the petition for declaratory ruling on the role of licensed practical nurses in Rho-gam injections.

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On March 13, 1992, the Board of Nursing published a notice of Petition for Declaratory Ruling at page 243, 1992 Montana Administrative Register, issue number 3, regarding the Petition for Declaratory Ruling of Mary Hackett on the authority of licensed practical nurses to administer Rho-gam injections to Rh negative postpartum patients within their scope of practice.

The Board of Nursing received public comment and considered the Petition on February 28, 1992, in a regular meeting of the Board.

The facts upon which this ruling are made are as follows:

The Petitioner represents Marcus Daly Hospital in Hamilton. The hospital wants to use licensed practical nurses to give Rho-gam injections to Rh negative postpartum patients. Rho-gam is a premixed and pre-labeled blood product which is given intramuscularly by injection to Rh negative postpartum mothers after the birth of an Rh positive infant. Students of a licensed practical nursing program are instructed on the Rh factor problem and treatment. The employer hospital will provide specific training to licensed practical nurses who will be allowed to administer Rho-gam injections.

The question presented from declaratory ruling is whether licensed practical nurses who are appropriately trained can administer Rho-gam injections to Rh negative postpartum patients within their scope of practice as defined by section 37-8-102 (3) (b), MCA.

The Petitioner contends that the administration of Rho-gam injections to Rh negative postpartum patients by licensed practical nurses who are appropriately trained is within the scope of practice of a licensed practical nurse.

The Board of Nursing agrees with the Petitioner. Rho-gam is a human blood product injected in Rh negative mothers to prevent the build-up of antibodies against the Rh positive factor recognized from an Rh positive baby. It prevents problems in future pregnancies from destruction of blood cells. The Rho-gam product is packaged premixed and labeled in a syringe and dispensed with the manufacturer's instructions. Section 37-8-102 (3) (b), MCA, indicates that the practice of practical nursing includes administration of medications and treatments prescribed by a physician, dentist, osteopath or podiatrist authorized by state law to prescribe medications and treatments. The Board concludes that the administration of Rho-gam injections to Rh negative postpartum patients falls within the scope of practice of a licensed practical nurse as defined by the statute

The Board of Nursing hereby rules that, under the facts presented, it is within the scope of practice of a licensed practical nurse who is appropriately trained to administer Rho-gam injections to Rh negative postpartum patients.

DATED this 28th day of May, 1992 Certified to the Secretary of State, June 15, 1992.

DECLARATORY RULING: PICC LINE INSERTION

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In the matter of the petition for declaratory ruling on the role of registered professional nurses in inserting peripherally inserted central catheters

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The Board of Nursing received a Petition for Declaratory Ruling from various nurses on behalf of Deaconess Medical Center of Billings, Montana, regarding the authority of registered professional nurses to insert peripherally inserted central catheters (PICCs) within the scope of their practice.

On March 25, 1993, the Board of Nursing published a Notice of Petition for Declaratory Ruling setting forth the facts and issues presented and establishing a hearing date of May 21, 1993. This notice was published in the 1993 Montana Administrative Register, Issue 6, page 457

On May 21, 1993, the Board of Nursing presided over a hearing on this matter, hearing testimony from various interested individuals

The Question Presented

Petitioners requested a ruling on whether it is within the scope of the RN practice act for registered professional nurses to insert PICCs. Petitioners requested a ruling on what qualifying criteria would be required for education, certification, demonstration and radiographic confirmation.

Facts Presented

The Petitioners represent Deaconess Medical Center. The hospital wants to use registered professional nurses to insert PICCs. The Petitioners are concerned about whether this activity fits within the scope of practice of a registered professional nurse.

The Petitioners indicated that patients have been admitted to Deaconess Medical Center with PICCs already inserted, and have further indicated a need to establish care and insertion guidelines. Physicians at Deaconess have requested that the hospital select a number of trained nurses to insert PICCs, due to unavailability of physicians at certain times of the day.

The Petitioners have indicated that they believe that a Montana State Board of Nursing ruling that would sanction qualified registered professional nurses to insert PICCs would help provide improved value, quality, and effective treatment to patients.

Applicable Law

Petitioner seeks a ruling that, with adequate training, insertion of PICCs is within the scope of practice of a registered professional nurse. The statutes and rules applicable to such an inquiry are as follows:

A. Section 37-8-102 (3) (a), defines the practice of professional nursing as follows:

Practice of professional nursing means the performance for compensation of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as a basis for the nursing process. The nursing process is the assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health; the prevention, case-finding, and management of illness, injury, or infirmity; and the restoration of optimum function. The term also includes administration, teaching counseling, supervision, delegation, and evaluation of nursing practice and the administration of medications and treatments. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered. As used in this subsection (3) (a):

(i) "nursing analysis" is the identification of those client problems for which nursing care is indicated and may include referral to medical or community resources;

"nursing intervention" is the implementation of a plan of nursing care necessary to accomplish defined goals.

B. Under ARM 8.32.1403 (4), the registered nurse shall:

(4) implement the strategy of care by:

(a) initiating nursing interventions through;

(i) giving direct care,

(ii) assisting with care

(iii) delegating care,

(iv) collaboration and/or referral when appropriate.

providing an environment conducive to safety and health,

documenting nursing interventions and responses to care to other members of the health team;

communicating nursing interventions and responses to care to other members of the health team.

C. Under ARM 8.32.1404 (3), the registered nurse shall:

(4) obtain instruction and supervision as necessary when implementing nursing techniques or practices.

Summary of Comments

Several of the petitioners testified at the hearing. Petitioners explained how a PICC is used, and claimed that the risks in inserting a PICC are low. These individuals stated that they believed that registered nurses should be subject to training prior to becoming involved in inserting PICCs, which should teach cognitive and psychomotor competence. These individuals further stated that they believed that a course of between four and eight hours would be appropriate.

Susan Luparell and Billea Rose, both clinical nurse specialists from Great Falls, stated their belief that an eight hour course would not be sufficient to teach a registered nurse how to properly insert a PICC. Ms. Luparell recommended that a course of at least one week in length be required. Ms. Luparell recommended that such course include one to two days of pure theory and didactic instruction, and the rest of the time in an intense preceptorship. Ms. Rose recommended against allowing placement of PICCs in the home, due to the lack of x-ray machines for confirmation of proper placement.

The Montana Nurses' Association (MNA), represented by Linda Adkins, stated its support for petitioners' request that placement of PICCs be held to be within the scope of practice of a registered nurse. The MNA noted that RNs with training in other states are doing insertions of PICCs. MNA further noted that insertion of PICCs is becoming an accepted part of RN scope of practice on a national level. The MNA encouraged the Board to approve this function for RNs in Montana, provided that educational criteria be satisfied as deemed appropriate by the Board of Nursing.

Declaratory Ruling

The term "professional nursing", as found at section 37-8-101 (3) (a), is defined as including the administration . . . of . . . treatments prescribed by physicians, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. The insertion of Peripherally Inserted Central Catheters is a treatment that may be prescribed by a physician. Thus, insertion of Peripherally Inserted Central Catheters is a treatment that may be prescribed by a physician. Thus, insertion of Peripherally Inserted Central Catheters is within the scope of practice of a registered professional nurse in the state of Montana, subject to the limitations herein. Under ARM section 8.32.1403 (4), a registered nurse is to practice through the use of collaboration and/or referral when appropriate, and is to provide an environment conducive to safety and health. The Board of Nursing interprets this section to require that the insertion of Peripherally Inserted Central Catheters, if done by registered nurses, be limited to primary hospital settings and physicians' offices. The nurse is to have licensed, trained personnel assist in the insertion. There must be immediate emergency services available, and follow up placement x-ray to confirm proper placement of PICCs. Under ARM 8.32.1404 (3), a registered nurse is to obtain instruction and supervision as necessary when implementing nursing techniques or practices. The Board of Nursing interprets this section to require adequate training of a registered nurse prior to insertion of PICCs. A registered nurse must complete training, involving both didactic and preceptored components. The training must afford multiple opportunities for placement of PICCs, opportunities to assess complications and treatments, and opportunities for multiple maintenance of PICCs. A registered nurse, in order to continue with insertion of PICCs, must maintain proficiency through continued education, demonstration & Quality Assurance monitoring.

DATED this 11th day of August, 1993.

DECLARATORY RULING: LPN - TELEPHONE AND VERBAL ORDERS

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In the matter of the petition for declaratory ruling on licensed practical nurses taking telephone and verbal orders.

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On May 14, 1992, the Board of Nursing published a notice of Petition for Declaratory Ruling at page 1062, 1992 Montana Administrative Register, issue number 9, regarding the Petition for Declaratory Ruling on the authority of licensed practical nurses taking telephone and verbal orders. The Board of Nursing received public comment and considered the Petition on the following dates, in their regular meetings of the Board, and during meetings of the LPN Issues Subcommittee:

May 28, 1992 July 16, 1992

October 23, 1992 November 12, 1992

February 5, 1993 February 25, 1993

April 12, 1993 May 20, 1993

July 19, 1993 July 29, 1993

November 2, 1993 November 4, 1993

The facts upon which this ruling are made are as follows: The Petitioner is an association of licensed practical nurses practicing in the state of Montana. In the course of their practice, some of the members of the association are or may be requested to receive and transcribe telephone orders from physicians, dentists, osteopaths or podiatrists. An informal opinion of the Board dated November 21, 1985 indicated that such activities are beyond the scope of practice of a licensed practical nurse. The members of the Association believe that informal statement is in error and that such activities are within the scope of practice of a licensed practical nurse. The Petitioner seeks to have that position reversed in this formal petition for declaratory ruling.

The question presented for declaratory ruling is whether the receiving of physician orders by telephone or verbally is within the scope of practice of the licensed practical nurse as defined by Section 37-8-102 (3) (b) MCA.

The Petitioner contends that licensed practical nurses receiving telephone and verbal orders are performing within their scope of practice.

Ruling

The Board of Nursing agrees. Section 37-8-102 (3) (b) MCA defines the "practice of practical nursing" to include performance of services requiring basic knowledge of "nursing procedures". In addition, a licensed practical nurse is to utilize "standardized procedures" in carrying out tasks, and is to perform his or her tasks under the "supervision of a registered professional nurse, or a physician, dentist, osteopath, or podiatrist authorized to prescribe medications."

The Board notes that various administrative rules provide clarification of the method under which the receiving of telephone and verbal orders shall be undertaken by a licensed practical nurse.

ARM section 8.32.1406 (3) (d), and (4) (a) & (b) provide general support for the Board's interpretation, and provide an appropriate standard for the licensed practical nurse to follow in undertaking the task of receiving telephone and verbal orders. Section 3 requires the licensed practical nurse to communicate nursing interventions and responses to care to appropriate members of the health team. Section 4 requires that the licensed practical nurse document and communicate data to appropriate members of the health team and to contribute to modifications in care based upon the evaluation.

ARM section 8.32.415 provides definitions of two of the terms found in the definition of a licensed practical nurse in section 37-8-102 (3) (b). Section 2 of ARM 8.32.415 defines "standardized procedures" as "routinely executed nursing actions for which there is an established level of knowledge and skill." Thus, the Board finds that a licensed practical nurse may receive telephone and verbal orders only if the setting in which the licensed practical nurse is practicing has established, by written policy, a level of knowledge and skill for undertaking the task.

Section 3 of ARM 8.32.415 defines "supervision" as "provision of guidance by a qualified nurse or a person specified in 37-8-102, MCA, for the accomplishment of a nursing task or activity with initial direction of the task or activity and periodic inspection of the actual act of accomplishing the task or activity." Thus, the Board finds that a licensed practical nurse may receive telephone and verbal orders only if under the guidance of a qualified individual as provided herein. Further, the licensed practical nurse must be provided with periodic inspection of the act of receiving telephone and verbal orders to continue the practice.

The Board notes that, under ARM section 8.32.1407 (2), a licensed practical nurse is to accept responsibility for individual nursing actions and competence. The Board has defined the term "competence" at ARM section 8.32.1404 (2), as "performing skillfully and proficiently the functions that are within the role of the licensee; and demonstrating the interrelationship of essential knowledge, judgment and skills." Further, under Section (5) of ARM 8.32.1407, a licensed nurse is to "obtain instruction and supervision as necessary when implementing nursing techniques and practices."

The Board finds that these sections require the licensed practical nurse to take individual responsibility for his or her ability to safely undertake the task of receiving telephone and verbal orders, and to refrain from undertaking the task until he or she has obtained adequate instruction and supervision.

To summarize, a licensed practical nurse who is specifically and adequately educated and trained for the role and acts under the supervision of a registered nurse, physician, dentist, osteopath, or podiatrist, subject to standardized procedures, is practicing within the scope of practice for a licensed practical nurse when receiving telephone and verbal orders.

Any interested parties may request judicial review of this declaratory ruling by filing a petition for judicial review in the District Court of the State of Montana in and for Lewis and Clark County within thirty (30) days of this ruling pursuant to Section 2-4-501 and 2-4-702 MCA.

DATED this 4th day of January, 1994.

DECLARATORY RULING: RN - SHARP DEBRIDEMENT

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In the matter of the petition for declaratory ruling regarding the scope of practice for registered nurses performing conservative, sharp debridement of non-viable tissue in wounds

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Introduction

The Board of Nursing received a Petition for Declaratory Ruling from various nurses regarding the authority of registered professional nurses to perform conservative, sharp debridement of non-viable tissue in wounds, pursuant to physician order. On October 14, 1993, the Board of Nursing published a Notice of Petition for Declaratory Ruling setting forth the facts and issues presented and establishing a hearing date of November 5, 1993. This notice was published in the 1993 Montana Administrative Register, Issue 19, page 2445. Interested persons were given the opportunity to present their views and arguments orally and in writing. The deadline for submission of written comments was November 12, 1993. No written comments were received by the Board. On November 5, 1993, at 8:00 a.m., in the conference room of the Professional and Occupational Licensing Bureau, Lower Level, Arcade Building, 111 North Jackson, Helena, Montana, the Board of Nursing considered the petition for declaratory ruling regarding the scope of practice for registered nurses performing conservative, sharp debridement of non-viable tissue in wounds, pursuant to physician order.

The Question Presented

Petitioners requested a ruling on whether it is within the scope of the RN practice act for registered professional nurses to perform conservative, sharp debridement of non-viable tissue in wounds, pursuant to physician order.

Facts Presented

The Petitioners represented registered nurses providing wound care. The Petitioners indicated this issue has been addressed in IAET (WOCN) educational programs, conferences and Standards of Care. Recent nursing literature discusses debridement as a component of wound management. The Petitioners also stated that the practice of sharp wound debridement on non-viable tissue in wounds is being performed in certain areas.

Applicable Law

7. Section 37-8-102 (3) (a), defines the practice of professional nursing as follows:

"Practice of professional nursing" means the performance for compensation of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as a basis for the nursing process. The nursing process is the assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health; the prevention, casefinding, and management of illness, injury, or infirmity; and the restoration of optimum function. The term also includes administration of medications and treatments prescribed by physicians, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered. As used in this subsection (3) (a):

(i) "nursing analysis" is the identification of those client problems for which nursing care is indicated and may include referral to medical or community resources;

(ii) "nursing intervention" is the implementation of a plan of nursing care necessary to accomplish defined goals.

8. Under ARM 8.32.1403 (4), the registered nurse shall:

(4) implement the strategy of care by:

initiating nursing interventions through;

(i) giving direct care,

(ii) assisting with care,

(iii) delegating care,

(iv) collaboration and/or referral when appropriate.

providing an environment conducive to safety and health,

documenting nursing interventions and responses to care to other members of the health team;

communicating nursing interventions and responses to care to other members of the health team.

9. Under ARM 8.32.1404 (3), the registered nurse shall:

(4) obtain instruction and supervision as necessary when implementing nursing techniques or practices.

Declaratory Ruling

The term "professional nursing", as found at section 37-8-101 (5) (b), is defined as including the administration . . . of . . . treatments prescribed by physicians, advanced practice registered nurses, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. The performance of conservative, sharp debridement of non-viable tissue in wounds, by a registered nurse, when performed pursuant to the requirements of section 37-8-101 (5) (b), and in compliance with the applicable law as cited herein, is within the scope of a properly trained registered nurse's practice. Under ARM 8.32.1404 (3), a registered nurse is to obtain instruction and supervision as necessary when implementing nursing techniques or practices. The Board of Nursing interprets this section to require adequate training of a registered nurse prior to performance of conservative sharp wound debridement, must complete training, involving both didactic and preceptored components. The training must afford opportunities to assess complications and appropriate application of treatments. A registered nurse, in order to continue with conservative sharp wound debridement, must maintain proficiency. This may be done through, among other methods, continued education, demonstration, & Quality Assurance monitoring. Any interested parties may request judicial review of this declaratory ruling by filing a petition for judicial review in a District Court of the State of Montana within thirty (30) days of the publication of this ruling pursuant to Section 2-4-501 and 2-4-702, MCA.

DONE this 17th day of February, 1994.

DECLARATORY RULING: RN - AROM

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In the matter of the petition for declaratory ruling on the artificial rupture of membranes by registered professional nurses under physician order

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INTRODUCTION

On November 24, 1993, the Board of Nursing received a completed Petition for Declaratory Ruling from Nancy Greer, Birthing Center Manager of Kalispell Regional Hospital, regarding the authority of registered professional nurses to perform artificial rupture of membranes of a woman in labor upon the order of the attending physician. On January 27, 1994, the Board of Nursing published a Notice of Petition for Declaratory Ruling setting forth the facts and issues presented and establishing a hearing date of February 18, 1994. This notice was published in the 1994 Montana Administrative Register, Issue 2, page 178. On February 18, 1993, at 8:00 a.m., in the conference room of the Professional and Occupational Licensing Bureau, 111 North Jackson, Arcade Building, Lower Level, Helena, Montana, the Board of Nursing considered a petition for declaratory ruling on artificial rupture of membranes by registered professional nurses under physician order.

The Question Presented

Petitioner requested a ruling on whether it is in the scope of the RN practice act for registered professional nurses to artificially rupture the membrane during a womans labor when done upon written order from the attending physician.

Summary of Comments Received

The following individuals submitted written comments, and/or appeared in person, as noted, and submitted comments on the petition in the above- entitled matter. Nancy Greer, petitioner, appeared at the Board's hearing on her petition, and presented testimony in support of a declaratory ruling that the artificial rupturing of membranes is within the scope of practice for a registered professional nurse under the order of the attending physician. Ms. Greer stated that a very small percentage of membranes rupture on their own. Ms. Greer stated that registered professional nurses in the states of Washington, Oregon, and Colorado are all authorized to perform this procedure under order from the attending physician. Ms. Greer stated that allowing the procedure to be performed by a registered professional nurse increases the convenience to the patient while maintaining protection of the patient as well. Barbara Booher, Executive Director of the Montana Nurses Association, appeared at the Board's hearing on the above-entitled petition, and presented informational testimony on standards that exist in the industry on a registered professional nurse performing this procedure under the order of the attending physician.

Camille Scott, Vice President of Clinical Services at Kalispell Regional Hospital, and Chris Ward, Clinical Practitioner at St. Peter's Hospital, Helena, Montana, appeared separately at the Board's hearing on the above-entitled matter, and presented testimony of general support for a declaratory ruling that would authorize the artificial rupturing of membranes by a registered professional nurse under the order of the attending physician. Kathy Anderson, Pediatrics Department Director of Northern Montana Hospital, and Dr. Charles B. Ludden, of Northwest Women's Health Care, presented written comments expressing general support for a declaratory ruling that would authorize the artificial rupturing of membranes by a registered professional nurse under the order of the attending physician.

Applicable Law

Section 37-8-102 (3) (a), defines the practice of professional nursing as follows:

"Practice of professional nursing" means the performance for compensation of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as a basis for the nursing process. The nursing process is the assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health; the prevention, casefinding, and management of illness, injury, or infirmity; and the restoration of optimum function. The term also includes administration, teaching, counseling, supervision, delegation, and evaluation of nursing practice and the administration of medications and treatments prescribed by physicians, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered. As used in this subsection (3) (a):

(i) "nursing analysis" is the identification of those client problems for which nursing care is indicated and may include referral to medical or community resources;

(ii) "nursing intervention ' is the implementation of a plan of nursing care necessary to accomplish defined goals.

7. Under ARM 8.32.1403 (4), the registered nurse shall:

(4) implement the strategy of care by:

initiating nursing interventions through;

(i) giving direct care,

(ii) assisting with care,

(iii) delegating care,

(iv) collaboration and/or referral when appropriate.

providing an environment conducive to safety and health,

documenting nursing interventions and responses to care to other members of the health team;

communicating nursing interventions and responses to care to other members of the health team.

8. Under ARM 8.32.1404 (3), the registered nurse shall

(4) obtain instruction and supervision as necessary when implementing nursing techniques or practices.

Declaratory Ruling

The term "professional nursing", as found at section 37-8-101 (5) (b), is defined as including the administration ... of ... treatments prescribed by physicians, advanced practice registered nurses, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. The artificial rupturing of membranes of a woman in labor by a registered nurse, when performed pursuant to the requirements of section 37-8-101 (5) (b), and in compliance with the applicable law as cited herein, is within the scope of a properly trained registered nurse's practice. Under ARM 8.32.140 (3), a registered nurse is to obtain instruction and supervision as necessary when implementing nursing techniques or practices. The Board of Nursing interprets this section to require adequate training of a registered nurse prior to performing the artificial rupturing of membranes of a woman in labor. A registered nurse must complete training, involving both didactic and preceptored components. The training must afford opportunities to assess complications and appropriate application of treatments. In addition, the practice of artificially rupturing membranes of a pregnant women may be done only on the order of the attending physician. The Board notes that the petitioner has assured that each registered professional nurse performing this procedure will be observed a minimum of three times by a physician before performing this procedure on their own. The Board also notes that petitioner has assured that registered professional nurses will not perform this procedure until after completion of extensive orientation on the obstetrical unit. A registered nurse, in order to continue with the practice of artificially rupturing membranes of a woman in labor, must maintain proficiency. This may be done through, among other methods, continued education, demonstration & Quality Assurance monitoring. Any interested parties may request judicial review of this declaratory ruling by filing a petition for judicial review in a district court of the state of Montana within 30 days of the publication of this ruling pursuant to Section 2-4-501 and 2-4-702, MCA.

Done this 29th day of April, 1994.

DECLARATORY RULING: RN - CONSCIOUS SEDATION

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In the matter of the petition for declaratory ruling on the administration of intravenous conscious sedation medications by non-anesthetist registered nurses.

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Introduction

On October 13, 1994, the Board of Nursing published a Notice of Petition for Declaratory Ruling in the above-entitled matter at page 2752, 1994 Montana Administrative Register, issue number 19. On November 17, 1994, the Board presided over a hearing in this matter to consider written and oral testimony from interested individuals. After consideration of the testimony and deliberation, the Board passed a motion to grant the petition for declaratory ruling.

Issue

Petitioners requested a ruling on whether it is within the scope of practice of a non-anesthetist registered nurse to administer intravenous conscious sedation medications under a physician's order based on the Board's interpretation of section 37-8-102 (5) (b), MCA, defining professional nursing.

Factual Background

The Petitioners represent the nursing staff at the Kalispell Regional Hospital and set forth the following definition of "intravenous conscious sedation" as adopted by the Association of Operating Room Nurses [AORN]:

Intravenous conscious sedation is produced by the administration of pharmacologic agents. A patient under conscious sedation has a depressed level of consciousness, but retains the ability to independently and continuously maintain a patent airway and respond appropriately to physical stimulation and/or verbal command.

The Petition alleges that non-anesthetist registered nurses currently perform IV conscious sedation for short-term therapeutic, surgical, or diagnostic procedures, and that this practice provides cost-effective, quality health care.

The petitioners requested this declaratory ruling to clarify that IV conscious sedation is within the scope of a non-anesthetist registered nurse who has had specialized training pursuant to a written standard of care describing conscious sedation licenseicies and procedures as required by the Joint Commission on Hospital Accreditation.

Summary of Comments

Kate Triplett, RN, submitted written testimony against allowing non-anesthetist registered nurses to administer IV conscious sedation, expressing the need for nurses performing the procedure to have specialized knowledge of anesthetic agents and potential side effects. Ms. Triplett further expressed the need for immediate accessibility to monitoring equipment, intubation equipment, and oxygen supplies when IV conscious sedation is being performed.

Several nurses signed their names to written statements submitted on behalf of Saint Vincent's Hospital and Health Center and Deaconess Medical Center in support of the petition. The testimony indicated that it is common practice for non-anesthetist nurses to administer IV conscious sedation medication under a physician's order. Both facilities follow the AORN standards of care with regard to administration of IV conscious sedation. These standards include parameters to be assessed during procedures which indicate a need for IV conscious sedation and a patient monitoring policy.

The Montana Nurses' Association, represented by Barbara Booher, testified in support of the petition. This testimony included a position statement adopting the AORN standard of care with regard to the role of the registered nurse in administering IV conscious sedation.

Relevant Law

The scope of practice of a registered nurse is set forth at section 37-8-102 (5) (b), MCA, and includes "the administration of medications and treatments prescribed by physicians..."

ARM 8.32.1404 (2) and (3) state that the registered nurse shall "accept responsibility for individual nursing actions and competence and base practice on validated data;" and shall "obtain instruction and supervision as necessary when implementing nursing techniques or practices . . . "

Conclusion

Based on these definitions, rules, statutes and the facts herein cited, the Board of Nursing adopts the position that it is within the scope of practice of a non-anesthetist registered nurse to administer IV conscious sedation medication.

The Petition is granted. DATED this 11th day of January, 1995.

DECLARATORY RULING: RN - PRONOUNCEMENT OF DEATH

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In the matter of the petition for declaratory ruling on the determination of pronouncement of death by a registered nurse

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TO: All Interested Persons:

On October 13, 1994, the Board of Nursing published a Notice of Petition fro Declaratory Ruling in the above-entitled matter at page 2755, 1994 Montana Administrative Register, issue number 19. On November 17, 1994, the Board presided over a hearing in this matter to consider written and oral testimony from interested individuals. On February 23, 1995, the Board withdrew the motion to issue an interpretive rule in this matter, and in the alternative, made a motion to issue this declaratory ruling.

Issue

Petitioners requested a ruling on whether it is within the scope of practice of a registered nurse to determine or pronounce death, based on the Boards interpretation of Section 50-22-101 (5) (b), MCA, defining professional nursing.

Factual Background

The Petitioners represent the nursing staff at the Missouri River Medical Center. The Petitioners alleged that on April 25, 1994, they received a notice of procedure from the administrator directing nursing staff to notify the appropriate medical staff member regarding a patient's absence of vital signs and to receive orders from the physician regarding disposition of the body. This notice was preceded by notice from medical staff that they would no longer physically verify death on hospital or nursing home patients.

The Petitioners alleged that in 1988, a Department of Health and Environmental Sciences survey of the facility indicated that nurses could not "certify" death.

An advisory opinion of the Board of Nursing issued in May, 1987 stated that "death pronouncement is a medical diagnosis and not within the scope of registered nursing practice." The Petitioners filed the Petition for Declaratory Ruling to seek clarification and to avoid practicing in violation of the Nurse Practice Act.

Summary of Contents

The Montana Nurses' Association submitted testimony in support of the ruling that it is within the scope of practice of a registered nurse to determine or pronounce death based on a registered nurse's qualifications to conduct nursing assessments and that the past practice has included this assessment and communication of the assessment to the physician.

Rita Turley, MSN, RN, Lionel Tapia, MD, and Jane Scharff, MN, RN, of Saint Vincent Hospital and Health Center, submitted written testimony in support of the authority of registered nurses to determine or pronounce death. This testimony stated that the substantial specialized knowledge of life sciences that registered nurses must have includes the ability to comprehend, assess, and describe the cessation of life. The testimony further stated that it has been the practice for over 20 years that the registered nurse assess and describe the cessation of vital signs to the physician via telephone to receive the pronouncement of death from the physician.

Further testimony was heard regarding the authority of elected officials to legally pronounce death in Montana without specialized training in life sciences.

Analysis

The May 8, 1987 advisory opinion of the Board of Nursing stated that because "pronouncement of death is a medical diagnosis," it was not within the scope of a registered nurse's practice to pronounce death. However, that advisory opinion further indicated that a registered nurse is "responsible for conducting and documenting nursing assessments of the health status of individuals and for communicating the evaluation data to the appropriate members of the health team."

The term "professional nursing" is defined in Section 37-8-102 (5) (b), MCA, and requires "substantial specialized knowledge" of biological, physical, and behavioral sciences. This section further defines the nursing process as including "the assessment, nursing analysis, . . . and evaluation in the promotion and maintenance of health . . . " "Nursing analysis" is the identification of those client problems for which nursing care is indicated and may include referral to medical . . . resources." Section 37-8-102 (5) (b) (I) , MCA.

Based on these definitions and the facts herein cited, it is within the scope of practice of a registered nurse to assess, analyze, and evaluate the cessation of vital signs to determine that death has occurred. This determination must be communicated to the appropriate medical resource to receive a medical diagnosis (pronouncement of death) appropriately documented.

Section 50-22-101, MCA states that determination of death "must be made in accordance with accepted medical standards." The procedure outlined herein conforms with "accepted medical standards."

DECLARATORY RULING: LPN - CLINICAL LAB NON-WAIVED TESTING

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In the matter of the petition for declaratory ruling on the performance of clinical laboratory testing by licensed practical nurses

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On January 26, 1995, the Board of Nursing published a Notice of Petition for Declaratory Ruling in the above-entitled matter at page 121, 1995 Montana Administrative Register, issue number 2. On February 23, 1995, the Board presided over a hearing in this matter to consider written and oral testimony from interested individuals. On that date the Board made a motion to delay action on the petition until the next regularly scheduled board meeting. On May 18, 1995, the Board made a motion to issue this declaratory ruling.

Issue

Petitioners requested a ruling on whether it is within the scope of practice of licensed practical nurses to perform clinical laboratory tests, based on the Board's interpretation of Section 37-8-102 (5) (a), MCA, defining the practice of practical nursing.

Summary of Contents

Eight written comments were received in support of practical nurses performing tests. The comments asserted that practical nurse basic instruction includes collection of specimen, and relative assessment to the proper health care provider. All asserted that federal regulation and monitoring of the laboratory under the Clinical Laboratory Improvement Act ensures quality control. Other comments, referring to the scope of practice, and permissible functions of a practical nurse, asserted that performance of tests utilizes standardized procedures in the observation and care of patients and is performed under the supervision of a physician. Some comments cited a potential increase in health care costs if practical nurses are restricted in the performance of laboratory tests. One comment labeled the issue a "turf struggle", adding that it is less expensive and in the interest of patient care to perform laboratory testing in a physician's office and that practical nurses, under supervision of a physician are qualified to perform such tests. The majority of comments supported the petition with regard to practical nurses' performance of tests under described circumstances; i.e.. Modified, waived, or a listing of tests as set forth in the petition.

Twenty-nine written comments were received in opposition to the petition. The comments noted a lack of laboratory training in the practical nurse curriculum in contrast to the more extensive education and clinical internship required for the laboratory practitioner. The comments further contend that performance of laboratory tests by unqualified persons poses a risk to the public health, safety and welfare. The comments noted that as testing becomes more automated and equipment more sophisticated, the need for highly trained individuals becomes critical. The majority of the comments described laboratory testing as work requiring competence in testing methods, quality control, quality assurance, test interpretation, and test validity; making a distinction between mere performance of tests and understanding the theory underlying laboratory tests. One person commenting questioned whether physicians other than pathologists and laboratorian were qualified to adequately supervise personnel who do not meet the qualifications of licensed laboratory practitioners. Another person characterized CLIA regulations as deficient in that instrument performance is addressed solely through proficiency testing whereas proficiency testing may occasionally fail to detect instrumental problems. Many comments noted that quality patient care would be best maintained if medical laboratory testing performed by licensed practical nurses was limited to the waived category under CLIA.

Analysis

Section 37-34-301, MCA, states that "[a] person may not engage in the practice of clinical laboratory science ... unless the person is licensed pursuant to this chapter."

Section 37-34-302 (2) (a), MCA, provides an exemption to the licensure requirement as a clinical laboratory science practitioner to include: any other profession licensed under Title 37 to the extent that the applicable scope of that practice, as defined by statute, rules of the board or agency governing the other profession, or both the statute and rules, authorizes the performance of a clinical laboratory test ...

Section 37-32-102 (5) (a), MCA, defines the scope of practice of practical nursing to include the: performance for compensation of services requiring basic knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing procedures. Practical nursing practice utilizes standardized procedures in the observation and care of the ill, injured, and infirm; in the maintenance of health; in action to safeguard life and health; and in the administration of medications and treatments prescribed by a physician, (et al.) ... authorized by state law to prescribe medications and treatments, These services are performed under the supervision of a registered nurse or physician, dentist, osteopath, or podiatrist authorized to prescribe medications and treatments.

Section 37-34-302 (2) (e), MCA, provides an exemption to the licensure requirement as a clinical laboratory science practitioner to include: any person performing only waived tests as provided for in the federal clinical laboratory regulations set forth in 42 CFR part 493.

Conclusion

After consideration of the comments in support and in opposition to the Petition; and upon review of the applicable statutes; the Board of Nursing makes the following declaratory ruling.

Clinical laboratory testing is not within the scope of practice of licensed practical nurses with the exception of waived tests provided for in the clinical laboratory regulation set forth in 42 CFR Part 493.15 or as amended.

DECLARATORY RULING: RN - EPIDURAL REGIONAL ANESTHESIA

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In the matter of the petition for declaratory ruling on the administration of regional anesthesia through epidural catheter by non-anesthetist registered nurses.

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Introduction

On July 27, 1995, the Board of Nursing received a Petition for Declaratory Ruling from various registered nurses at St. Peter's Community Hospital, 2475 Broadway, Helena, Montana. On January 2, 1996, the Board of Nursing published a Notice of Petition for Declaratory Ruling in the 1996 Montana Administrative Register, Issue 1, page 169. On February 8, 1996, the Board of Nursing presided over a hearing on this matter.

Question Presented

Petitioners request a ruling on whether a professional registered nurse may administer regional analgesia through an epidural catheter upon written order and general supervision of an anesthesiologist.

Findings of Fact

All written and oral comments supported the petition.

Approximately 25 nursing jurisdictions affirmatively allow registered nurses to perform the procedure with minor variation in training, setting and methodology.

Epidural analgesia is an effective method of pain control that has been used since approximately 1988 for pre and post-operative acute pain control and chronic pain conditions.

Administration of epidural analgesia is performed in the following settings: hospitals and home health care.

The Petitioners presented no mortality or morbidity statistics for this practice.

Complications and side effects include respiratory depression, infection related to catheter placement, urinary retention, neurological impairment, hypotension, pruritis, spinal headaches, inadvertent subdural penetration of the catheter, nausea, and vomiting. These complications, however, are rare and are similar to the complications experienced with central line access, a procedure that registered nurses regularly perform.

Health care agencies directing the practice have developed written protocol to assist the registered nurse performing the procedure.

An informal opinion of the Board of Nursing dated May 23, 1990, reflected that the administration of analgesia through an epidural catheter under the order and general supervision of a physician was within the registered nurse's statutory scope of practice.

Conclusions of Law

Section 37-8-102 (5), MCA, defined "professional nursing", to include "the administration of medications and treatments prescribed by physicians, advanced practice registered nurses, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments."

Administrative Rule of Montana 8.23.1404 provides in part that a registered nurse shall "obtain instruction and supervision as necessary when implementing nursing techniques or practices;" and "collaborate with other members of the health team to provide optimum client care . . ."

Declaratory Ruling

Based on the above findings of fact and conclusions of law, the Board of Nursing declares the following:

The scope of practice of a registered nurse includes administration of analgesia through an existing epidural catheter as ordered in writing by a physician or qualified anesthetist provider for a specific patient; The procedure may be accomplished through either intermittent bolus or continuous infusion; The procedure may be performed in all settings. The performance of the procedure does include the removal of the catheter upon the order of the attending physician or qualified nurse anesthetist provider; The performance of the procedure by the registered nurse be contingent upon documented education, certification, and annual competency evaluations. This declaratory ruling is subject to judicial review in accordance with sections 2-4-501 and 2-4-702, MCA.

Done this 19th day of December, 1996.

DECLARATORY RULING: RN - OXYGEN SATURATION AND HgB MONITORING

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In the matter of the petition for declaratory ruling on the performance of mixed venous O2 saturation and hemoglobins by a licensed professional nurse using an AVOXimeter.

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On September 8, 1997, the Board of Nursing published a Notice of Petition for Declaratory Ruling in the above-entitled matter at page 1609, 1997 Montana Administrative Register, issue number 17. On November 6, 1997, R. Perry Eskridge, Hearing Examiner, presided over a hearing in this matter. Immediately following the hearing which was attended by all Board members, the Board met to consider the written and oral testimony from interested individuals. On November 6, 1997, the Board moved to issue this declaratory ruling.

Issue

Petitioners requested a ruling on whether it is within the scope of practice of licensed professional nurses to perform mixed venous O2 saturation and hemoglobins using an AVOXimeter as the scope of practice is defined in section 37-8-102 (5) (b), MCA.

Summary of Comments

In addition to the written petition for declaratory ruling, the Board received one written comment from Ms. Sami Butler, RN. Ms. Butler's comments supported the petition stating that the cardiologist responsible for drawing the blood, is present during AVOXimeter performance, and is responsible for evaluating the results. By allowing the licensed professional nurse to perform the blood draw, insert the sample into the AVOXimeter, and obtain the results, the process becomes cost effective for the patient and increases the efficiency of cardiac catheter lab personnel.

Pursuant to section 37-34-301, MCA, "A person may not engage in the practice of clinical laboratory science or hold out to the public that the person is a clinical laboratory science practitioner in this state unless the person is licensed pursuant to this chapter."

Under the provisions of section 37-34-302 (2), MCA, other professions licensed under Title 37 are exempt from the clinical laboratory licensing act if the performance of the clinical laboratory test is within the scope of practice for the particular profession.

Section 37-8-102 (5) (b), MCA, defines the practice of professional nursing as "services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological and sociological sciences and of nursing theory as a basis for the nursing process."

The term "nursing process" is defined at section 37-8-102 (5) (b), MCA, as "assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health; the prevention, casefinding, and management of illness, injury, or infirmity; . . . :

Use of the AVOXimeter is considered "moderately complex" by the federal Food and Drug Administration. In essence, the skills necessary to perform tests utilizing the AVOXimeter are blood drawing, properly preparing a cuvette, proper insertion of the cuvette, and proper responses to menu driven machine operation via an alphanumeric display and keypad. Accompanying the AVOXimeter is a one page instruction sheet which sets out the brief instructions for inserting the cuvette into the machine and proper calibration of the machine. While the skills involved in the operation may appear "moderately complex" for the AVOXimeter, it is the Board's interpretation that the minimally trained professional nurse possesses these basic skills upon graduation from a Board approved program and, with minimal manufacturer training, is competent to operate the AVOXimeter.

The skills necessary to operate the AVOXimeter are clearly within the scope of practice for professional nurses, professional nurses are, therefore, exempt from the licensing procedures set forth in the clinical laboratory science practitioner licensing act.

Because the skills necessary to properly operate the AVOXimeter are within the scope of practice for professional nurses, professional nurses are, therefore, exempt from the licensing procedures set forth in the clinical laboratory science practitioner licensing act.

Conclusions

After consideration of the comments in support of the Petition, and upon review of the applicable statutes, the Board of Nursing makes the following declaratory ruling.

Performance of O2 saturation and hemoglobins performed on an AVOXimeter within the cardiac catheter lab are within the scope of practice for licensed professional nurses receiving the appropriate manufacturer training pertaining to the proper use of the machine.

Certified to the Secretary of State, March 16, 1998.

DECLARATORY RULING: RN - PELVIC EXAMINATIONS

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In the matter of the petition for declaratory ruling on the performance of pelvic examinations by a professional nurse.

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On September 8, 1997, the Board of Nursing published a Notice of Petition for Declaratory Ruling in the above-entitled matter at page 1606, 1997 Montana Administrative Register, issue number 17. On November 6, 1997, R. Perry Eskridge, Hearing Examiner, presided over a hearing in this matter. Immediately following the hearing which was attended by all Board members, the Board met to consider the written and oral testimony from interested individuals. On November 6, 1997, the Board moved to issue this declaratory ruling.

Issue

Petitioners requested a ruling clarifying whether the performance of pelvic examinations utilizing a speculum is within the scope of practice for licensed professional nurses as the practice is defined at Section 37-8-102 (5) (b), MCA, and interpreted by the Board.

Summary of Comments

The Board accepted written comments on the issue. The Board received nine comments opposing the petition. The majority of the comments expressed concern about an "entry-level" professional nurse's ability to perform pelvic examinations, stating that the level of education received by a professional nursing student does not adequately prepare a professional nurse to perform these examinations.

One comment or cautioned the Board not to prohibit professional nurses from removing foreign objects, such as condoms or tampons, from the pelvic area with appropriate referrals for follow-up care.

Several commentors stated that the performance of pelvic examinations was appropriate for those professional nurses who have received additional training resulting in recognition as an Advanced Practice Registered Nurse.

It should be noted that petitioner, Judy Jacoby, RN, BSN, submitted a comprehensive course of study developed by the Mayo Clinic of Rochester, Minnesota, designed to train professional nurses in proper pelvic examination techniques. Accordingly, information submitted by the petitioner was in favor of the petition and supported a favorable ruling.

Analysis

Pursuant to Section 2-4-501, MCA, the Board is authorized to issue declaratory rulings "as to the applicability of any statutory provision."

The Notice of Petition was filed in accordance with Section 2-4-501, MCA, and appeared at page 1606-1608 of issue number 17, 1997 Montana Administrative Register.

Section 37-8-102 (5) (b), MCA, defines the scope of practice for professional nurses as "performance . . . of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as a basis for the nursing process." (Emphasis added.)

The term "nursing process" is further defined as "assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health; the prevention, casefinding, and management of illness, injury, or infirmity; . . ." Section 37-8-102 (5) (b), MCA.

Petitioner presented materials prepared by the Mayo Clinic in Rochester, Minnesota, which clearly demonstrate the merits of that particular provider's program. However, the mere fact that the petitioner presents the advanced training materials demonstrates that additional training is required before a professional nurse would be adequately qualified to perform this type of examination. The Board recognizes that the scope of practice for professional nurses is essentially delineated by the minimum competency, entry level, minimally prepared licensee.

Section 37-8-102 (1), MCA, defines an advanced practice registered nurse as "a registered professional nurse who has completed educational requirements related to the nurse's specific practice role, in addition to basic nursing, as specified by the board pursuant to 37-8-202 (5) (a), MCA.

Ms. Eleanor Hardy, an advanced practice registered nurse, testified that it was her belief "that the training necessary to perform [pap smears and pelvic exams] within the nursing process is the training and preparation as required by the Montana Board of Nursing to be recognized as an advanced practice registered nurse." Transcript, pg 23,lns 15-19. She further stated that the knowledge and skills necessary to perform pap smears and pelvic examinations is akin to masters degree preparation and requires "in-depth knowledge and complex skills and increased status synthesis".

Conclusion

The issue presented for the Board's consideration was whether the performance of pap smears and pelvic examinations were within the scope of practice for professional nurses as defined at section 37-8-102 (5) (b), MCA.

After consideration of the comments in support and in opposition to the petition; and upon review of the applicable statutes; the Board of Nursing makes the following declaratory ruling.

The performance of pap smears and pelvic examinations using a speculum is not within the scope of practice of licensed professional nurses. This does not, in any way, infringe on the scope of advanced practice registered nurses performing these procedures as part of the scope of practice for that recognition category.

Certified to the Secretary of State, March 16, 1998.

DECLARATORY RULING: TRANSTHORACIC ECHOCARDIOGRAMS - AIR AGITATED SALINE

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In the matter of the petition for declaratory ruling on the protocol of air agitated saline in trans-thoracic echocardiograms

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On June 17, 1999, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 1415, 1999 Montana Administrative Register, issue number 12. Hearing on the matter was held July 15, 1999 before the full Board with Lon Mitchell, Hearing Examiner, presiding. At the hearing the Board considered all submitted and written comments as well as formal testimony, then issued its Declaratory Ruling.

ISSUE

Is it within the scope of practice for a registered nurse to inject air agitated saline for trans-thoracic echo-cardiograms?

SUMMARY OF COMMENTS

One written comment was submitted and one witness testified at the hearing. All comments received were in favor of allowing the procedure. There were no comments or testimony given adverse to that position.

ANALYSIS

Pursuant to Section 2-4-501, MCA, the Board is authorized to issue Declaratory Rulings "as to the applicability of any statutory provision."

The Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page 1415, 1999 Montana Administrative Register, Issue No. 12.

Section 37-8-102(5)(a) and (b), MCA, defines the scope of "practice of nursing" to include "...the administration of medications and treatments prescribed by physicians, advanced practice registered nurses, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments... ."

ARM 8.32.1404 states, "The registered nurse shall: ...Obtain instruction and supervision as necessary when implementing techniques or practices; ...Provide optimum client care... ."

Based on these definitions and the statutes and facts herein cited, it is within the scope of practice of a registered nurse to inject air agitated saline solution in trans-thoracic echo-cardiograms (commonly called contrast echocardiogram).

CONCLUSIONS

After consideration of the comments in support of the Petition, and upon review of the applicable statutes and rules, the Board of Nursing makes the following declaratory ruling.

DECLARATORY RULING

It is within the scope of practice for a registered nurse to inject air-agitated saline for trans-thoracic echo-cardiograms.

Certified to the Secretary of State, July 17, 2000.

DECLARATORY RULING: RNs - VAGINAL SPECULUMS - FORENSIC EVIDENCE

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In the matter of the petition for declaratory ruling on the use of vaginal speculums by RN(s) to obtain forensic evidence from sexual assault victims

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On February 10, 2000, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 495, 2000 Montana Administrative Register, issue number 3. Hearing on the matter was held February 24, 2000 before the full Board with Lon Mitchell, Hearing Examiner, presiding. At the hearing the Board considered all submitted and written comments as well as formal testimony, then issued its Declaratory Ruling.

ISSUE

Is it within the scope of practice for a registered nurse to use vaginal speculums for collection of forensic evidence from sexual assault victims?

SUMMARY OF COMMENTS

Twenty-five written comments were submitted and six witnesses testified at the hearing.

COMMENT NO. 1: One commentor, who is a RN-C, WHNP, stated that she supported the idea of providing the most appropriate care to all victims of assault/rape.

COMMENT NO. 2: Attorney General Joe Mazurek filed a written comment and testified in support of properly trained Sexual Assault Nurse Examiners (SANE) being allowed to use vaginal speculums for collection of forensic evidence from sexual assault victims.

COMMENT NO. 3: James A. Gilson, Deputy Attorney General for the State of New Jersey, submitted a written comment stating his support of the proposal based on his experience with a similar program in the state of New Jersey.

COMMENT NO. 4: Julie Long, Serology/DNA Supervisor for the Montana State Crime lab submitted a written comment stating her support for the petition.

COMMENT NO. 5: Sami Butler, RN, Executive Director on behalf of the Montana Nurses' Association submitted a written comment and testified in support of the petition in the interest of "furthering the potential for justice and for easing the emotional trauma of victims."

COMMENTS NO. 6 & 7: Two commentors testified in support of the petition.

COMMENT NO. 8: Melodee Hanes, Deputy Yellowstone County Attorney testified in support of the petition.

COMMENT NO. 9: Judy Peterson, RN, Director of Extended Care Service, an Association of Montana Health Care Providers (MHA) submitted a written comment stating that the MHA approves the use of vaginal speculums by properly trained and competency evaluated RNs.

COMMENT NO. 10: The Helena OB/GYN Associates submitted a written comment expressing their concerns based upon the possible assumption by "many women" that if they have a pap smear done, they need no further evaluation. They feel that only advanced practice registered nurses should be allowed to use vaginal speculums.

COMMENT NO. 11: One commentor, a CNM, MS submitted a written comment stating her opposition to allowing registered nurses to use vaginal speculums unless they are advanced practice registered nurses.

COMMENT NO. 12: One commentor, an APRN, MSN submitted a written comment stating her opposition to the petition and does not feel that RNs should be used for specimen collection in all instances, in particular not for pap smears.

COMMENT NO. 13: One commentor, an APRN, submitted a written comment stating that she opposes the petition because using vaginal speculums is too complex for the training given RNs in school.

COMMENT NOS. 14 - 29: Fifteen commentors submitted written statements expressing their support of the petition.

ANALYSIS

Pursuant to Section 2-4-501, MCA, the Board is authorized to issue Declaratory Rulings "as to the applicability of any statutory provision."

The Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page, 495, 2000 Montana Administrative Register, Issue No. 3.

After consideration of the comments in support of the Petition, and upon review of the applicable statutes and rules, the Board of Nursing makes the following declaratory ruling.

DECLARATORY RULING

The use of vaginal speculums for non-diagnostic purposes is within the scope of practice of the registered nurse.

Certified to the Secretary of State, September 25, 2000.

DECLARATORY RULING: EPIDURAL ANALGESIA

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In the matter of the petition for declaratory ruling on the management of continuous infusion of epidural catheter for analgesia in the obstetric setting

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On April 27, 2000, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 1090, 2000 Montana Administrative Register, issue number 8. Hearing on the matter was held July 20, 2000 before the full Board with Lon Mitchell, Hearing Examiner, presiding. At the hearing the Board considered all submitted and written comments as well as formal testimony, then issued its Declaratory Ruling.

ISSUE

Is it within the scope of practice of a registered nurse to monitor a continuous infusion of an epidural analgesia in a pregnant patient?

SUMMARY OF COMMENTS

Eight written comments were submitted and six witnesses testified at the hearing.

COMMENT NO. 1: Brian Zins and Mike P. Schweitzer, M.D. on behalf of the Montana Medical Association submitted a letter requesting the reversal of the declaratory ruling, stating that they believe it to be unnecessary because it "limits the health care team".

COMMENT NO. 2: John Honsky, BSN, RNC, MA, President of the Montana Nurses' Association testified and submitted a written statement in support of allowing a registered nurse to monitor a continuous infusion of an epidural analgesia in a pregnant patient provided the RN meets educational criteria for monitoring, that the RN practices under specific institutional licenseicies and that protocols are in place in the institution. Education criteria means "in accordance with Association of Women's Health, Obstetrics and Neonatal Nurses' Standards for Education for RNs."

COMMENT NO. 3: Sami Butler, RN, representing the Montana Nurses' Association as executive director, testified in support of the Petition.

COMMENT NO. 4: One commentor testified asking the Board to adopt the Association of Women's Health, Obstetric, and Neonatal Nurses (AWHONN) position.

COMMENT NO. 5: One commentor testified in support of following the AWHONN guidelines because they say who does what and who doesn't do what.

COMMENT NO. 6: One commentor, an OB/GYN, testified in support of the petition, but believes AWHONN guidelines are very good.

COMMENT NO. 7: Michael Barts, CRNA on behalf of the Montana Association of Nurse Anesthetists testified and submitted a written comment stating that the MANA organization is in agreement with the AWHONN position statement and that RNs should not have anything to do with the actual administration of labor epidural analgesia medication.

COMMENT NO. 8: One commentor submitted a written comment in support of the AWHONN guidelines.

COMMENT NO. 9: One commentor submitted a written comment proposing the following: Management of analgesia in the laboring patient with viable fetus via epidural catheter is in the scope of practice of the RN provided that qualified anesthesia personnel are readily available to the unit. Management in this context shall include monitoring of a continuous infusion or a patient controlled infusion but shall not include administration of bolus doses or increasing a continuous infusion.

COMMENT NO. 10: One commentor submitted a letter asking a number of questions regarding meanings of certain terms and safety for the mother and her baby.

COMMENTS NO. 11 & 12: Two commentors submitted letters in support of the petition.

ANALYSIS

Pursuant to Section 2-4-501, MCA, the Board is authorized to issue Declaratory Rulings "as to the applicability of any statutory provision."

The Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page, 1090, 2000 Montana Administrative Register, Issue No. 8.

After consideration of the comments and upon review of the applicable statutes and rules, the Board of Nursing makes the following declaratory ruling.

DECLARATORY RULING

It is within the scope of practice of the registered nurse to monitor the mother and fetus, replace empty infusion syringes or infusion bags with new pre-prepared solutions, stop the infusion, initiate emergency therapeutic measures under protocol if complications arise, and remove the catheter. The nurse may not rebolus an epidural catheter or increase the rate of continuous infusion.

Certified to the Secretary of State, September 25, 2000.

DECLARATORY RULING: EPIDURAL ANALGESIA

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In the matter of the petition for declaratory ruling on the issue of whether the scope of the Nurse Practice Act allows all levels of nursing to conduct un-waived CLIA tests

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TO: All Concerned Persons

On September 7, 2000, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 2437, 2000 Montana Administrative Register, issue number 17. Hearing on the matter was held October 5, 2000 before Peter Ohman, Hearing Examiner. The time for allowing additional comments was extended until November 2, 2000 by Notice published at page 2782, 2000 Montana Administrative Register, issue No. 20. On November 15, 2000 the Board considered all submitted and written comments as well as formal testimony, then issued its Declaratory Ruling.

ISSUE

Is it within the scope of practice of a registered nurse to perform un-waived CLIA tests?

SUMMARY OF COMMENTS

Written and oral comments were received from 43 persons.

COMMENTS NO. 1-11: Eleven comments were received stating that the individuals believed that performing un-waived CLIA tests was in the scope of practice of nursing and imploring the Board of Nursing not to restrict the scope of practice accordingly. The commentors also stated that if performing un-waived CLIA tests is beyond the scope of practice for nurses, why haven't there been problems documented with laboratories that use RNs.

COMMENTS NO. 12-24: Thirteen comments were received stating that Advanced Practice Registered Nurses are already qualified to perform un-waived CLIA tests and asking that the Board of Nursing not restrict their scope of practice.

COMMENTS NO. 25-41: Seventeen comments were received from doctors and clinical laboratory personnel and organizations seeking a Board of Nursing determination that performing un-waived CLIA tests, without proper licensure, is beyond the scope of practice of nurses and their scope of practice should be restricted accordingly. The commentors further stated that if nurses are trained and competent to do un-waived CLIA tests, they should be able to pass the National Laboratory Exam which would then give them licensure by the Board of Clinical Laboratory Science Practitioners.

COMMENTS NO. 42 & 43: Two comments were received that were neutral in tone which merely asked that the Board of Nursing carefully consider this request for Declaratory Ruling because of the shortage of qualified personnel and the possible hardship it could cause in remote areas of the State of Montana.

ANALYSIS

6. Pursuant to Section 2-4-501, MCA, the Board is authorized to issue Declaratory Rulings "as to the applicability of any statutory provision."

7. The Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page 2437, 2000 Montana Administrative Register, Issue No. 17.

8. The Board considered the fact that nurses are already performing these tasks in many areas of Montana. There have been no documented incidents of problems as a result of nurses performing these tests. One Board member felt that care in rural areas would be significantly affected if the registered nurses were not allowed to perform these tests. Board members also discussed the fact that a nurse is required to be competent in whatever tasks the nurse completes and that performing un-waived CLIA tests is no different. The responsibility for attaining and maintaining competency lies with the individual nurse. After consideration of the comments and upon review of the applicable statutes and rules, the Board of Nursing makes the following declaratory ruling.

DECLARATORY RULING

9. It is within the scope of practice of the registered nurse to perform un-waived CLIA tests.

BOARD OF NURSING

RITA HARDING, RN, MN, PRESIDENT

By:

______________________________

ANNIE M. BARTOS, CHIEF COUNSEL

DEPARTMENT OF COMMERCE

By:

____________________________________

ANNIE M. BARTOS, RULE REVIEWER

Certified to the Secretary of State, December 11, 2000.

DECLARATORY RULING: UNWAIVED CLIA TESTS *******************************************************************

In the matter of the petition for declaratory ruling on the issue of whether the scope of the Nurse Practice Act allows all levels of nursing to conduct un-waived CLIA tests

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TO: All Concerned Persons

1. On September 7, 2000, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 2437, 2000 Montana Administrative Register, issue number 17.

2. Hearing on the matter was held October 5, 2000 before Peter Ohman, Hearing Examiner. The time for allowing additional comments was extended until November 2, 2000 by Notice published at page 2782, 2000 Montana Administrative Register, issue No. 20.

3. On November 15, 2000 the Board considered all submitted and written comments as well as formal testimony, then issued its Declaratory Ruling.

ISSUE

1. Is it within the scope of practice of a registered nurse to perform un-waived CLIA tests?

SUMMARY OF COMMENTS

Written and oral comments were received from 43 persons.

COMMENTS NO. 42 and 43: Two comments were received that were neutral in tone which merely asked that the Board of Nursing carefully consider this request for Declaratory Ruling because of the shortage of qualified personnel and the possible hardship it could cause in remote areas of the State of Montana.

ANALYSIS

6. Pursuant to Section 2-4-501, MCA, the Board is authorized to issue Declaratory Rulings "as to the applicability of any statutory provision."

7. The Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page 2437, 2000 Montana Administrative Register, Issue No. 17.

DECLARATORY RULING

9. It is within the scope of practice of the registered nurse to perform un-waived CLIA tests.

BOARD OF NURSING

RITA HARDING, RN, MN, PRESIDENT

By: ______________________________ ANNIE M. BARTOS, CHIEF COUNSEL DEPARTMENT OF COMMERCE

By: ____________________________________ ANNIE M. BARTOS, RULE REVIEWER

Certified to the Secretary of State, December 11, 2000.

DECLARATORY RULING: MICRODERMABRASION - INDEPENDENT SETTING
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In the matter of the petition for declaratory ruling on the issue of whether the scope of practice of registered nurses includes performing microdermabrasion procedures in an independent setting
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TO: All Concerned Persons

1. On April 26, 2001, the Board of Nursing published a Petition for Declaratory Ruling in the above entitled matter at page 685, 2001 Montana Administrative Register, issue number 8.

2. Hearing on the matter was held May 16, 2001 before F. Lon Mitchell, Hearing Examiner.

3. At its regularly scheduled board meeting on July 18, 2001, the full Board considered all oral testimony from interested individuals. No written comments were received.

ISSUE

Petitioner, Anita Masters, RN requested a ruling on whether it is within the scope of practice of a registered nurse to perform microdermabrasion procedures in an independent setting under the provisions of ARM 8.32.415, 8.32.1401, 8.32.1403, 8.32.1404, and 8.32.1407.

FACTUAL BACKGROUND

1. Anita Masters brought this Petition on her own behalf because an esthetician in Kansas City, who had been performing this procedure in Montana, was aware of nurses performing microdermabrasion procedures in independent settings in other states.

2. Petitioner states that she would like to start a skin care business and perform microdermabrasion procedures.

3. Petitioner states that she feels nurses are uniquely qualified to assess and care for clients while providing referral to other health care professionals, if needed.

SUMMARY OF COMMENTS, TESTIMONY AND QUESTIONS

COMMENT NO. 1: Anita Masters is an RN and brought the petition before the Board. She is in favor of the Board making a determination that performing microdermabrasion procedures is within the scope of practice of a registered nurse. She believes the procedures to be non-invasive and involve a "sandblasting with suction." It is used for fine wrinkles, acne scars and hyper-pigmentation. It does not draw blood but just takes off the outer layer of skin and is commonly done by people trained in esthetics. When more significant wrinkles are treated, an intensive medical procedure is required and results in a significant recovery period for the patient.

COMMENT NO. 2: Barbara Seabury, RN, who works for a plastic surgeon testified that she believes this is something nurses should be able to do. She believes that nurses, through their education, have better critical thinking skills. The perception of the public is that they may be more relaxed with a nurse than an esthetician. They can ask questions about health history, medications they're on, etc. These are not subjects they can discuss with an esthetician and expect that an esthetician could properly place this information in the treatment evaluation. She also believes it is not really nursing, per se and stated that the chance of an adverse reaction is virtually non-existent.

COMMENT NO. 3: Jeannie Worsech, Administrator for the Board of Cosmetologists testified for informational purposes only. She stated that the Board of Cosmetologists has worked for two and a half years researching information regarding microdermabrasion to allow them to come up with rules and regulations for their licensees who wished to practice microdermabrasion. She stated that they are not only dealing with microdermabrasion, but are also dealing with chemical exfoliation, manual exfoliation and mechanical exfoliation. She stated that there is also a technique called laser resurfacing which is literally peeling off layers of skin. An esthetician cannot use a medical machine. The difference between the two machines is that the medical machine has a booster and is more powerful than the one used by estheticians. It hits harder with the abrasive and with one pass could draw blood. Estheticians are looking at upper level exfoliation only. There are concerns about the abrasives used. Aluminum oxide is the appropriate abrasive material manufactured but some individuals have been reported as using baking soda or salt because its cheaper.

ANALYSIS

1. Pursuant to Section 2-4-501, MCA, the Board is authorized to issue declaratory rulings "as to the applicability of any statutory provision."

2. The Notice of Petition for Declaratory Ruling was filed in accordance with Section 2-4-501, MCA, and appeared at page 685 of Issue No. 8, 2001 Montana Administrative Register.

3. Section 37-8-102(5)(b), MCA, defines the scope of practice for professional nurses as "performance...of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences of nursing theory as a basis for the nursing process." This section further states that, "each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered."

4. ARM 8.32.415 defines "Nursing Procedures" as follows: "Nursing procedures means those nursing actions selected and performed in the delivery of safe and effective patient/client care.

5. The Board considered the fact that a "few" nurses were already performing microdermabrasion under the direct order of a physician and also considered the fact that the risk of injury to the patient/client is minimal.

6. No adverse circumstances were cited which would indicate that it was necessary for this type of procedure to be performed under the auspices of a physician - in fact, estheticians licensed by the Board of Cosmetologists are currently performing microdermabrasion without the degree of medical training of nurses or the medical community.

DECLARATORY RULING

The Board has therefore determined that it is within the scope of practice of registered nurses with appropriate training and competencies to perform microdermabrasion procedures in an independent setting.

BOARD OF NURSING
JACK BURKE, PRESIDENT

Certified to the Secretary of State, August 13, 2001.

Department of Labor & Industry - Business Standards