A 'Safe Harbor' for Unsafe Nursing Assignments

Carolyn Buppert, MSN, JD

Disclosures

April 26, 2019

Imagine this scenario: A nurse who has worked for 2 years in an adult medical-surgical unit reports for work and learns that she is assigned to work in neonatal intensive care that day. She doesn't think she can provide safe care to sick neonates, and says so to the supervisor, who tells her to go to the neonatal unit anyway.

What are the nurse's options here? Refuse the assignment, and face disciplinary action? Or go, try, risk making a mistake, and hope for the best?

A new law in New Mexico gives nurses another option. Under the Safe Harbor for Nurses act, a nurse is protected from adverse action by a facility when the nurse makes a good faith request to be allowed to reject an assignment. The law allows a nurse to reject an assignment on the basis of the nurse's assessment of his or her education, knowledge, competence, or experience and the nurse's immediate assessment of the risk for patient safety, or violation of the Nurse Practice Act or Board of Nursing rules.

The law applies to entities having three or more nurses that are licensed by the department of health to provide healthcare on their premises. The facility must have a process by which to further assess the situation. The law also allows a nurse to invoke the safe harbor when he or she questions the medical reasonableness of another healthcare provider's order that the nurse is required to execute. The nurse and supervisor document the date, time, location, and reason for the invocation of safe harbor. The facility must conduct a postoccurrence review of the situation, and cannot retaliate against the nurse for invoking the safe harbor.

New Mexico's law was inspired by a Texas law. Texas took a slightly different approach to the problem. In Texas, a nurse may invoke safe harbor when the nurse believes he or she has been given an unsafe assignment by filling out a lengthy form, and a peer review committee at the facility must make a determination about the situation within 14 days. The nurse may take the assignment or perform the service during the 14-day period, unless the assignment is one that the nurse lacks the skills necessary to competently perform. The nurse who invokes safe harbor may not leave the work setting without collaborating with the supervisor. The facility may not retaliate against the nurse who invokes the safe harbor. The Texas law applies to employers of eight or more nurses. Like New Mexico's law, the Texas law allows a nurse to invoke safe harbor to question the medical reasonableness of a physician's order. A medical director or member of the medical staff must determine whether the order was reasonable.

The Texas process has been criticized as cumbersome in emergency situations. Here is an example of how the Texas law can work successfully[1]:

A long-term care facility reduced staffing from three full-time wound care nurses to one. Two weeks later, the remaining wound care nurse noted an increased occurrence of pressure ulcers among the residents and believed this was related to her inability to complete her assignment of skin assessments and wound care treatments. She believed her duty to patient safety was compromised by the increased workload and she invoked safe harbor. She continued in her role as the single wound care nurse for the facility until the peer review committee met. The committee determined that her assignment did violate her duty to protect the residents. The director of nursing accepted the committee's decision and adjusted the assignment by adding a part-time wound care nurse and assigning charge nurses to assist with skin assessments.

New Mexico and Texas are the only two states so far that offer a "safe harbor" for nurses who find themselves with possibly unsafe assignments or orders.

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