Sidestepping responsibility or overstepping authority? by Anne Paxton

When it comes to professionals' workload and hours, most licensing boards would say they have no jurisdiction. But in several recent cases, employee working conditions are at the crux of proposed licensing board rules that have run into roadblocks or outright reversal.

In North Carolina, the pharmacy board attempted to address the squeeze on pharmacists, many of whom are being asked by drug store chains to fill 200 prescriptions a day, even up to 300 according to some reports. Last July, the board proposed a rule requiring that pharmacists be given at least two rest breaks a day, including their lunch break.

Excessive pharmacist workload has been a board concern for some time. In 1997, it issued a policy that in cases of prescription dispensing errors, if more than 150 prescriptions per pharmacist per day were filled on the day of the error, then both the pharmacist and the entity holding the permit would be cited for possible disciplinary action. The board also said it would adopt a rule stating that "pharmacists shall not dispense and permit holders shall not allow a pharmacist to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety."

In December, however, the state Rules Review Commission struck down the mandatory break rule, saying the board had overstepped its authority. The board says it may take its case to court.

Labor and state licensing issues have also intersected in Alaska, where the Matanuska Electric Association has filed suit to challenge a change in state labor regulations that requires line workers to pass Alaska's licensing exam. Before the change which took effect December 25, any line workers could go to work with a trainee's license, whether or not they had been trained. Licensed outside linemen are now prohibited from working with a trainee's license and must pass the state exam.

This quickly turned into a money issue when five employees from the Matanuska Electric Association's computer department went on strike January 8, after talks between their union, the International Brotherhood of Electrical Workers Local 1547, and utility negotiators floundered. Several dozen other employees including 17 electrical line workers walked off the job in support of the strikers. MEA tried to bring in six line workers from Washington state to replace those who walked out, but none of the workers passed the exam. The MEA attorney compared the requirement to having to pass the Alaska bar exam with only 24 hours to study.

If the exam requirement is allowed to stand, the association says, it will allow inexperienced trainees to go on the job while forcing experienced workers to pass the Alaska exam. In the suit before the Alaska Superior Court, MEA is asking for a ruling that the regulation is unfair and invalid so it can use workers from out-of-state.

In New York, state licensing authorities are imposing different limits on the employees companies may hire. The state Board for Ophthalmic Dispensing, part of the state Education Department, has adopted new regulations allowing an optician, optometrist, or ophthalmologist to supervise no more than one apprentice trainee at a time (New York allows opticians to qualify for licensing through two years of supervised training and experience).

Pearle Vision, part of Cole National Corp. based in Cincinnati, operates 23 optical stores in the state. It says its opticians can train more than one candidate at a time and the limit on the number of trainees it can hire damages its business. Last September, it filed suit against the state, charging that the regulations contradict state education law and improperly place state authority in private hands.

According to the board, it placed the limit at one to make sure opticians can devote enough attention to the apprentice's education while doing their own work.

In Massachusetts, the state nurses association and the nursing board are at odds over the line between the nurse's responsibility for the patient and the hospital's responsibility. The board approved a draft proposed regulation in December that promptly set off a firestorm of criticism from nurses in the state. The rules would prohibit any nurse's conduct that "may reflect adversely on the profession," they would bar nurses from providing more nursing care than the patient needs, and would forbid against patient "abandonment" or "leaving a nursing assignment" without lining up other care.

The board considers the proposal a codification of its current policy, but the Massachusetts Nurses Association (MNA), which is a collective bargaining agent, perceives the proposal as a warning to nurses against engaging in union activity or criticizing their working conditions. The abandonment wording, the association maintains, could force nurses into mandatory overtime if a hospital, nursing home or home-care agency doesn't provide adequate staffing. And the prohibition on providing more than needed nursing care could promote the interests of health care institutions trying to cut corners on patient care, nurses believe.

An apparently unrelated board action fanned the flames. In December the board took the dramatic step of citing 18 nurses for alleged negligence in a fatal series of chemotherapy overdoses at Dana-Farber Cancer Center in 1994. The overdoses, which killed a Boston Globe health columnist and seriously injured another patient, have been variously blamed on the physician who wrote the erroneous medication order (his license was retroactively suspended in October 1998, and he is now eligible for reinstatement), the pharmacists who filled the prescription, the hospital which lacked a policy requiring double-checking of medication orders, the absence of computer systems to flag overdoses, and inadequate staff training on new chemotherapy regimes.

But there was a public outcry when the board proposed to discipline the nurses, who many feel were following orders in an unfamiliar protocol. The MNA as well as hospitals in the state have formed a coalition to prevent medical errors but they're emphasizing systemic solutions, not discipline of individual professionals.

The nursing board is reconsidering its proposal and has promised to work with nurses to address their concerns, though it considers them unfounded. But the Massachusetts controversy and those in other states suggest that the firewall between professional licensing and labor issues is becoming thinner all the time. And this means that negotiating the roles of professionals who also happen to be employees will increasingly pose challenges to licensing boards.