National Nurses United

News Briefs 4 S E P T E M B E R 2 0 0 5 C A L I F O R N I A N U R S E L icensed vocational nurses are flatly prohibited from administering in- travenous medications in any set- ting, a Sacramento court decided in July after a six-year fight by CNA against the Board of Vocational Nurses and Psychi- atric Technicians. The Board has said it will not appeal the ruling. Sacramento Superior Court Judge Judy Hersher found that the Board's adoption in January 2003 of regula- tions allowing LVNs to give IV drugs in hemodialysis, blood bank, and phere- sis settings illegally expanded the LVN scope of practice. As Hersher con- cluded, "the Board's interpretations of Section 2860.5 is erroneous. As con- strued by this Court, section 2860.5 prohibits the Board to adopt a regula- tion authorizing LVNs to administer in- travenous medications." In 1999, the BVNPT voted to re- verse its own 25-year interpretation of the LVN Practice Act that prohibited the administration of intravenous med- ications by LVNs. CNA challenged this action as an illegal "underground" reg- ulation which jeopardized the health and safety of patients with end-stage renal disease. The BVNPT then tried to legalize the underground regulation by initiat- ing a regulatory process to adopt changes in the LVN scope of practice within the California Code of Regula- tions. CNA noted at the outset that the BVNPT's regulatory actions were an abuse of the limited statutory author- ity granted to the BVNPT. Generally, regulations flesh out the specifics of statutes passed by the Legislature. While regulations can clarify and elaborate upon statutes so that those who must follow the law completely understand them, regula- tions cannot interpret the statute to mean something unintended by the Legislature. The law that allows LVN to ad- minister IV fluids that do not contain medications was passed in 1974. While the 1974 legislation was being crafted, authority to administer intravenous medications was specifically elimi- nated from the bill before it was sent from the Legislature to the governor for a signature. In 1982, an attempt to change the statute to allow LVNs to ad- minister intravenous medications was again rejected by the Legislature. This clear legislative history, ac- companied by the Board's own public documents and advisories stating that the administration of intravenous med- ications by LVNs was an illegal proce- dure, made the 1999 about-face incomprehensible. When the Office of Administrative Law at first rejected these regulations on April 12, 2002 by saying that they enlarged the LVN scope of practice in a way that was inconsistent with the Vocational Nursing Practice Act, the regulatory process appeared to stop. However, the OAL added in its rejection that it would be willing to recon- sider the issue if evidence was submitted showing that nursing had evolved since 1974 to the point where, today, medications used in dialysis were con- sidered essential compo- nents of intravenous fluids. The dialysis industry rose to the occasion and supplied the BVNPT with letters claiming that, in- deed, medications used in dialysis were now consid- ered essential components of intravenous fluids. The BVNPT used these letters and a newly crafted legal opinion by the Board's own legal advocate to resubmit the regulations to the Of- fice of Administrative Law on Dec. 13, 2002. Without explanation, the OAL ap- proved the regulations on Jan. 29, 2003. This ap- proval prompted CNA to file a lawsuit challenging the regulations on Feb. 24, 2003. The final decision, a victory for pa- tients with end-stage renal disease, re- quired more than two years of legal filings, motions, and hearings accom- panied by thousands of pages of legal briefs, exhibits, and documents. CNA activist Joann Brown, RN, dialysis co- ordinator at Mills-Peninsula Health Ser- vices, first noted the practice changes in free-standing dialysis units and im- mediately notified CNA, the BRN, and queried the BVNPT. Brown, who pro- vided expert testimony and her profes- sional expertise throughout the legal battle, said that "part of the lesson that must be taken away from this long and arduous process is that RNs must im- mediately act whenever they believe their professional practice has been compromised." —Vicki Bermudez, RN Court Decides that LVNs Cannot Give IV Medication

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