THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

 

TO:

Higher Education and Professional Practice Committee

FROM:

Johanna Duncan-Poitier

SUBJECT:

Proposed Amendment to the Regulations of the Commissioner of Education Relating to the Execution by Registered Nurses of Non-Patient Specific Orders to Administer Human Immunodeficiency Virus Tests

DATE:

February 27, 2007

STRATEGIC GOAL:

Goal 3

AUTHORIZATION(S):

 

 

 

 

SUMMARY

 

Issue for Discussion

 

            Should the Board of Regents amend Section 64.7 of the Regulations of the Commissioner of Education relating to the execution by registered nurses of non-patient specific orders to administer Human Immunodeficiency Virus (HIV) tests?

 

Reason(s) for Consideration


            Required by State Statute.


Proposed Handling

 

The proposed amendment is before the Higher Education and Professional Practice Committee for discussion in March 2007 and will be submitted for action at the May 2007 Regents meeting.

 

Procedural History

 

            A Notice of Proposed Rule Making concerning the proposed amendment will be published in the State Register on March 7, 2007.  Supporting materials are available upon request from the Secretary of the Board of Regents.

 

Background Information

           

Chapter 429 of the Laws of 2005, effective August 2, 2005, added a new paragraph (d) to section 6909 of the Education Law, permitting registered professional nurses to execute non-patient specific orders prescribed by a licensed physician or a certified nurse practitioner for the administration of HIV tests.  The existing list of procedures that registered nurses can currently perform pursuant to a non-patient specific order include: (1) administration of certain immunizations, (2) anaphylactic treatment medications, and (3) tuberculin skin tests. 

 

Section 6909 (5) of the Education Law directs the Commissioner of Education to promulgate regulations concerning the execution of such non-patient specific orders by registered professional nurses.  The purpose of the proposed amendment is to establish uniform requirements for registered professional nurses to meet when executing non-patient specific orders to administer HIV tests.  Specifically, the proposed amendment defines what information should be included in the non-patient specific order and the requirements that must be set forth in the protocol, for a registered professional nurse to follow when administering an HIV test through a non-patient specific order.  The proposed amendment also requires registered professional nurses to either maintain or ensure the maintenance of a copy of the non-patient specific order and protocol for a specified period of time.

 

The non-patient specific order must contain the following information:  (a) identification of the HIV-related test; (b) the period of time that the order is effective; (c) the name(s) and license number(s) of the registered professional nurse(s) authorized to execute the order or the name of the entity that is legally authorized to employ or contract with registered professional nurses to provide nursing services; (d) in instances in which registered professional nurses are identified as employed or under contract with an entity, the order shall contain a statement limiting registered professional nurses to execute such order only in the course of such employment; and (e) the order must contain the name, license number, and signature of the licensed physician or certified nurse practitioner that has issued the order.

 

The proposed amendment further requires that the protocol, which must be incorporated into the order, contain the following procedures:  the registered professional nurse shall ensure that each potential recipient is assessed for conditions that would preclude HIV-related testing; that each recipientís record of the test or refusal to be tested is documented; that the registered professional nurse execute the non-patient specific order in accordance with applicable State laws and regulations; and that the registered professional nurse certify that he/she obtained the written, informed consent of the recipient, or when the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual, and provide pre-test counseling prior to ordering the performance of the HIV-related test. The registered professional nurse must also provide the recipient, or other person legally responsible for the recipient, upon request, with a signed certificate of HIV testing containing prescribed information.  The registered professional nurse must also ensure, with appropriate consent, that information about the test is communicated to the recipient's primary health care provider, if one exists.

 

This amendment is needed to advise registered professional nurses of the requirements that they must meet to execute a non-patient specific order for the administration of HIV tests; to provide uniformity and consistency in the information that must be contained in the order and the protocols to be followed when administering such tests and the requirements for the maintenance of such records.  At the present time, about 168,000 registered professional nurses are licensed to practice in New York State.  Consequently, a significant number of individuals will be affected by the proposed amendment. 

 

The amendment is also needed to protect the public health.  Providing such testing through non-patient specific orders and protocols prescribed by licensed physicians and certified nurse practitioners allows for a more effective response to the public health need for HIV testing for many segments of the population of New York State.

 

Representatives from the New York State Department of Health and the Office of the Professions have collaborated on the proposed content of the regulations. These regulations are the product of those discussions and negotiations.

 

Recommendation

 

            Not applicable.

 

Timetable for Implementation

 

The effective date of the proposed amendment is June 14, 2007.

 

 


AMENDMENT TO REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 207, 6507, 6527, 6902 and 6909 of the Education Law. 

Section 64.7 of the Regulations of the Commissioner of Education is amended, effective June 14, 2007, as follows:

64.7 Immunizations, emergency treatment of anaphylaxis, [and] purified protein derivative (PPD) mantoux tuberculin skin tests and human immunodeficiency virus (HIV) tests pursuant to non-patient specific orders and protocols.

(a) . . .

(b) . . .

            (c) . . .

            (d) Human Immunodeficiency Virus (HIV) tests.

            (1) As used in this subdivision, human immunodeficiency virus (HIV) test means HIV-related test as defined in section 63.1 of the Rules and Regulations of the New York State Department of Health (10 NYCRR 63.1).

(2) Pursuant to section 6909(5) of the Education Law, a registered professional nurse shall be authorized to execute an order to administer HIV tests, pursuant to a non-patient specific order and protocol prescribed and ordered by a licensed physician or a certified nurse practitioner, provided the order and protocol meet the requirements of paragraph (3) of this subdivision.  The following provisions apply to the administration of an HIV test pursuant to a non-patient specific standing order when such test is administered by a registered professional nurse.

(3) Order and Protocol.

(i) The registered professional nurse shall either maintain or ensure the maintenance of a copy of the non-patient specific order and protocol prescribed by a licensed physician or a certified nurse practitioner, which authorizes a registered professional nurse to execute the order to administer an HIV test, in accordance with the requirements of paragraph (2) of this subdivision.  The order prescribed in subparagraph (ii) of this paragraph shall incorporate a protocol that meets the requirements of subparagraph (iii) of this paragraph.  Such order and protocol shall be considered a record of the patient who has received an HIV test and be maintained as a record for the period of time prescribed in paragraph 29.2(a)(3) of this Title.

(ii) The order shall authorize one or more named registered professional nurses, or registered professional nurses who are not individually named but are identified as employed or under contract with an entity that is legally authorized to employ or contract with registered professional nurses to provide nursing services, to execute the order to administer HIV tests for a prescribed period of time.  In instances in which the registered professional nurses are not individually named in the order, but are identified as employed or under contract with an entity that is legally authorized to employ or contract with registered professional nurses to provide nursing services, such registered professional nurses shall not be authorized by such order to execute the order to administer HIV tests outside of such employment or contract.  The order shall contain but shall not be limited to the following information:

(a) identification of the HIV test;

(b) the period of time that the order is effective, including the beginning and ending dates;

(c) the name and license number of the registered professional nurse(s) authorized to execute the order to administer the HIV test; or the name of the entity that is legally authorized to employ or contract with registered professional nurses to provide nursing services with whom registered professional nurses who are not individually named are employed or under contract to execute the order to administer the HIV test;

(d) in instances in which registered professional nurses are not individually named in the order, but are identified as employed or under contract with an entity that is legally authorized to employ or contract with registered professional nurses to provide nursing services, the order shall contain a statement limiting registered professional nurses to execute the order to administer HIV tests only in the course of such employment or pursuant to such contract; and

(e) the name, license number, and signature of the licensed physician or certified nurse practitioner that has issued the order.

(iii) The protocol, incorporated into the order prescribed in subparagraph (ii) of this paragraph, shall require the registered professional nurse to meet the following requirements:

(a) The registered professional nurse shall ensure that each potential recipient is assessed for conditions that would preclude HIV testing and ensure that each recipient's record of the HIV test with manufacturer and lot number or a potential recipient's refusal to be tested is documented in accordance with paragraph 29.2(a)(3) of this Title.

(b) The registered professional nurse shall execute the order to administer an HIV test in accordance with applicable State laws and regulations, including but not limited to, Article 27-F of the Public Health Law and Part 63 of the Rules and Regulations of the New York State Department of Health.

(c) The registered professional nurse shall certify that he/she obtained the written, informed consent of the recipient, or when the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual, prior to ordering the performance of the HIV test.  Informed consent shall include pre-test counseling to the recipient, or if the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual.  The written informed consent and the pre-test counseling shall be obtained and conducted in accordance with Article 27-F of the Public Health Law and Part 63 of the Rules and Regulations of the New York State Department of Health.

(d) A physician or nurse practitioner who issues a non-patient specific order for HIV testing shall retain responsibility for communication of a confirmatory, positive HIV test result to the recipient, or when the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual.  A registered professional nurse is not authorized to deliver a final confirmatory HIV positive test result through a non-patient specific order.  A registered professional nurse may only deliver a confirmatory, positive HIV test result through a patient specific order as directed by the treating physician or nurse practitioner.

 (e) The registered professional nurse shall, upon request, ensure that the recipient, or when the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual, is provided with a signed certificate of HIV testing and results, with the recipient's name, date of the test, address where the test was administered, the name of the administering nurse, manufacturer and product lot number.

(f) With the consent of the recipient or when the recipient lacks capacity to consent, a person authorized pursuant to law to consent to health care for such individual, and with an appropriate authorization for the release of confidential HIV information, the registered professional nurse shall ensure that this information is communicated to the recipient's primary health care provider if one exists in accordance with the requirements of Article 27-F of the Public Health Law and Part 63 of the Rules and Regulations of the New York State Department of Health.

(g) Each registered professional nurse shall ensure that a record of all persons so tested including the recipient's name, date of the test, address where the test was administered, administering nurse, test results, manufacturer, lot numbers and such other information as may be necessary pursuant to the protocol is recorded and maintained in accordance with section 29.2(a)(3) of this Title and Article 27-F of the Public Health Law and Part 63 of the Rules and Regulations of the New York State Department of Health.