An administrative law judge is expected to hear arguments next month in the case, which is part of a broader national debate about the administration of a drug that is commonly used when patients undergo procedures such as colonoscopies.
Arguing it is trying to protect patients and nurses, the Board of Nursing has proposed a rule that would largely prevent registered nurses and licensed-practical nurses from administering the drug known as propofol.
“We’re talking about having the nurses put in jeopardy their licenses because they lack the education and training that’s necessary to implement” orders from doctors to administer such drugs, said Jessie Colin, chairwoman of the Board of Nursing, during a March conference call in which panel moved forward with the rule.
But the doctors’ groups contend that only the Legislature, not the Board of Nursing, can approve such a limitation. Florida Medical Association General Counsel Jeff Scott said the board is trying to dictate to doctors how they should manage procedures such as sedating patients.
“The point is, you’ve got a group (the Board of Nursing) that is doing something they simply don’t have the authority to do,” Scott said.
The FMA, the Florida Osteopathic Medical Association and the Florida Podiatric Medical Association filed the case in late April in the state Division of Administrative Hearings. The Board of Nursing has considered the sedation issue for about a decade, with the debate potentially affecting numerous groups including nurses, gastroenterologists, anesthesiologists and certified registered nurse anesthetists.
As an example, if doctors cannot direct nurses to sedate patients, they might have to more often use anesthesiologists and certified registered nurse anesthetists.
The Florida Department of Health, which houses the Board of Nursing, declined comment Tuesday because of the pending litigation.
The proposed rule deals with a moderate form of sedation that is frequently described as “conscious” sedation. Propofol, which is also known by the brand name Diprivan, is commonly used, at least in part because patients are able to recover from sedation quickly.
The administrative law judge will likely focus on whether the Board of Nursing has the legal power to restrict nurses from administering the drug. The doctors’ groups contend that the board tried to “shoehorn” the proposed rule into another regulation about unprofessional conduct by nurses.
“It is completely incomprehensible how the Board of Nursing believes that the authority to define ‘unprofessional conduct’ encompasses the authority to decide which licensed health-care professionals may or may not administer a certain drug during a medical procedure,” the doctors’ legal petition said.
Also raising objections to the rule has been the Legislature’s Joint Administrative Procedures Committee, which reviews such issues. A February letter signed by Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who chairs the committee, said the Board of Nursing “is not authorized to alter, by rule, what the Legislature has defined as the scope of practice for registered nurses.”
During the March conference call, it was clear that members of the Board of Nursing knew they could face such legal challenges if they moved ahead with the proposal. But a board attorney also expressed confidence they had the power to approve the rule.
The Florida proposal is part of a long-running debate that has led national medical groups to take positions about whether nurses should be able to administer propofol.
In 2005, for instance, the American College of Gastroenterology asked the federal Food and Drug Administration to remove a warning label that said the drug should only be administered by people who have training in general anesthesia. The FDA later declined the organization’s request.