An ED RN Calls Safe Harbor

On today’s episode we’re going to talk about Safe Harbor. Not every State has it, and even in those that do, many nurses don’t know how to use it. Until now. Because I’m going to teach you what you need to know to safeguard your license when shit gets out of control.

Transcript

EDRN Episode 47 T2

[00:00:00] Welcome to it's an ED RN on today's episode, we're going to talk about safe Harbor. Not every state has it. And even in those that do. Many nurses don't know how to use it. Until now. Because I'm going to teach you what you need to know to safeguard your license when shit gets out of control. I'm your host, an ED RN.

And I hope you'll stick around to listen.

an ED RN call safe Harbor. [00:01:00]

Welcome to my podcast. It's an ED RN. I am your host an EDRN. And today. We're going to talk about safe Harbor. What is it? When to do it and how to do it simply put safe Harbor is. a, law that varies by state and some states don't have it, but it essentially safeguards your nursing license in situations where you are asked to take on more work. Then you were trained to do or work that you were never trained to do. And we're going to go into that. Here in a moment, but first, if this is your first time listening.

Welcome. Thank you for being here. I have been a nurse for 12 years. I started out in med surge. And then I went to the ICU. I was asked supervisor for a minute. I was a nurse manager. For five years, which you can listen to that episode if you like, but for the past [00:02:00] two years, I've been back to bedside in an emergency department. In a level one trauma center.

And I have really, really enjoyed my time there. in as much as there are some things that I find. Could be better.

Spaced on the state of healthcare. Writ large. And that's mostly what the show is about. And today. We're going to talk about safe Harbor. So. Why do we have this safe Harbor law? In many states. We have this law because nurses throughout decades, we're vocal about dangerous situations that they were put in. And that's usually why we have anything as nurses.

Let's not forget that we are our biggest advocates and we are often the reason why we get. Anything.

So there's a couple of cases that really. [00:03:00] Kind of sped along this adopting of safe Harbor laws. And why don't I say a sped along. you'll see why that that's not quite. it's not quite true, but the first case is that of Lillian bell. This is a nurse who was working, in 1985 and bell refused. To give a medication because the physician ordering the medication seemed altered and the medication itself was an inappropriate dose for the patient. And I don't know if any of you have ever. Interacted with nurses from the eighties. But it was truly the wild west of nursing.

It. Just the things they were expected to just do. And the way that physicians especially were treated and the way that you as a nurse. Kind of had to Revere them above and beyond what we're expected to do today, even. this was [00:04:00] kind of outrageous for her to refuse to do something that a physician had told her to do. she was subsequently fired for insubordination. As can be expected. and this case brought national attention and national criticism from not just nurses, but nursing boards and nursing organizations.

And it fueled advocacy. Efforts and work for basic whistleblower protections. And protections for nurses. The second case. That seems to be the most prominent when. Kind of researching safe Harbor laws and how we got them is that of a nurse in 2009. So we go from 1985 to 2009. And this nurse, Mel Gibson, not that. Mel Gibson. This was a critical care nurse practicing in New York.

And she raised concerns about dangerously low [00:05:00] nurse to patient ratios at her hospital. Now she was subsequently disciplined. and her community was outraged at this. They agreed with her that these were unsafe ratios. They wouldn't want their family members to be taken care of at these ratios.

The fact that she was disciplined as a result of speaking up, once again, showcased the need for these kinds of laws. around refusing orders, but also around staffing shortages and ratios. In addition to these cases, there were also a number of. Nursing institutions that helped lobby for these protections that the two, probably most prominent of those were the American nurses association and the national council of state boards of nursing, which I did not know was a thing. Prior to researching this episode. the other thing that really helped contribute is that general whistleblower protections across all [00:06:00] industries were really, gaining traction in this time and shining a light on the need for. some kinds of protections around safety in their workplace. Or a reasonable job expectations, things like that. So. Where. Do these safe Harbor laws exist because even. In the face of these cases and the lobbying and these facts. And what we as nurses know to exist out there, the unsafe patient assignments and just the state of healthcare today, there are still states that do not have safe Harbor laws.

The states that do have safe Harbor laws on the books in a comprehensive manner as of December 30th, 2023. Connecticut Illinois, Massachusetts, Minnesota, New Mexico, New York, Tennessee, Vermont, and Washington. There are also a few additional states that have safe Harbor laws. That maybe aren't as expansive, but they still do exist in those states are California, [00:07:00] Florida, Rhode Island and Texas. Every other state. In the union lax. Safe Harbor laws. To protect nurses.

It's important to note also that even though the states listed have some level of safe Harbor protections, they vary widely by state. So. Keep that in mind. When do you call. Safe harbor. So like, when is it appropriate?

There are three main categories under which this can be. Separated. So when a nurse is asked to perform an assignment that they believe in good faith could. Violate the nursing practice act or board of nursing rules. Compromise patient safety. Be unethical or put the nurse's license at risk. So, those are kind of the three broad categories. How do you call safe Harbor?

How do you do it? So the first step is a [00:08:00] short form.

And you write down a one to two sentence statement about why the situation is not safe. You also at this time, notify your S your direct supervisor or whoever the designated facility. admin is for that shift.

After that. There is a long form. That's often. Filled out at the end of your shift. I think it has to be filled out before you leave. In some cases. before you leave your shift and then after that, your administration, that you've turned to the short form and then the long form into has 24 hours to do their side of the paperwork and submit that to their administration.

And then all of that goes under peer review and a panel of. Nurse leaders in the organization. decide whether or not this was a legitimate case for safe Harbor. [00:09:00]

So what does safe Harbor actually. I do well first and most importantly, safe Harbor ensures freedom from retaliation. Which means as you raise the safety concern. Employers are not allowed to fire you to demote you to. Essentially. Penalize you for raising a concern. This also gives you immunity from board discipline. So if you follow the proper procedure for safe Harbor, you're saying this is unsafe.

And the purpose of that is to say, I'm going to make a mistake. Under these circumstances, the likelihood of me making a mistake that harms a patient is, is high. And. That's very important because as we know, since OMI, landmark studies like to err is human. Previously, we have just blamed the [00:10:00] individual when something went wrong. And I mean, Since. The two thousands we have known because we have data to show. That more often than not.

It's the circumstances. That sets you up for failure. The circumstances that sets you up to make those errors. So this is your insurance against discipline from the board of nursing. When you make that error, because you have already stated this is unsafe. I feel unsafe in my practice. in this situation. So, how can you find out more specifics beyond this episode?

Because it certainly isn't comprehensive, but I'm going to go into some very specifics here in a moment. But very generally. In order to find out more about safe Harbor check your hospital's policy. most safe Harbor laws have baked into them.

A requirement that your hospital educate you to the safe Harbor law. check with your state's board of nursing. They will have information about safe Harbor, [00:11:00] talk to coworkers, your coworkers might've practiced in a different state and they. May have called safe Harbor in the past. So kind of gather all your resources around you.

The American nurses association will also have language around this.

That's kind of the general thing. The reason. I'm even talking about. This is because I have recently been in a position. Where I, and a number of my coworkers called safe Harbor. And I'm going to go over that specific situation now. And this isn't. Meant to be again, this is not comprehensive. This is very specific to my state. And the situation that I was in and is not a predictor of how well this may go for you or how poorly this may go for you. But I just.

I guess in the interest of keeping it. Real real. So. Here's my personal experience of the one time in my 12 [00:12:00] year nursing career that I felt. We needed to call safe Harbor.

I work in a level one trauma center and predominantly I work in the trauma bay. Our trauma bay was set up to accommodate at most nine patients. It originally was set up to accommodate six, but post COVID we've created some very creative, areas. That are essentially hallways. But, we can do nine patients. it is. Not unusual.

And it is actually common nowadays that we see 12 to 15 patients in the trauma bay. When we get to 15. I mean, shit's hitting the fan. things are just getting wild, right? On this day, we had 22 patients in that space. A space that was designed to care for nine patients safely. What this meant was logistically. Is not only were we understaffed.

So we were at a six to one ratio, some of us,[00:13:00] at the very least five to one in a critical care space, by the way. But there was actually no physical area.

Where we could code someone.

So the beds were so close together. That we couldn't get between them. I mean, these patients could have held hands.

And the way that the trauma bay that I work at is set up is your medication Pyxis and the crash carts of which there are many. In this trauma bay are, are behind where the patients are lined up. So essentially. If. Patient three of six in a row. Coded. They've got a patient on either side of them that doesn't allow for any space. For us to pull on a crash cart to stand. On the side, just to be on the side that there's no space, essentially. There's no space to code someone. And that [00:14:00] more than anything else, more than the workload, more than the. Alarms blaring more than the patients who I had to triage according to who was going to die first, if I didn't do this intervention, which is a really terrible way to practice nursing.

but essential in certain situations more than that, it was this idea that there was no physical space to undead someone. In an area where people die. Not.

not, UN. Commonly not on rarely not, these are not words. Moving on. So.

I wasn't even thinking safe Harbor. I was thinking more logistically, you know, my. Short plan was if, if patient, you know, three of six in this one row codes. I would take patient two and patient for the patient. Either side of them, pull out those stretchers [00:15:00] and just shove them like perpendicular to the feet of the patients on either side.

I don't know. I was thinking in some kind of Tetris arrangement. And then a. A fellow nurse who is a newer nurse, less than two years. Out of nursing school mentioned safe Harbor. And it was like,

Something, I hadn't even considered in so long. I feel, I feel kind of silly that I didn't even think of it because it was just, so I immediately knew that this was warranted. And I also at the same time.

Immediately didn't want to do it. Because my perception was that. There would be retaliation. Even as much as I knew it was baked into the law, even as I just.

There was a hesitation there for sure. When that hesitation was [00:16:00] completely lifted.

Was when this nurse was talking to our manager and the house administrator, and they were trying to dissuade them. From calling safe Harbor. And they were telling them that safe Harbor is not appropriate in cases of census, in cases of nurse ratios. This is patently false and I knew this was patently false. And I knew in that moment. That we were going to do it. So I got. I got on our intranet.

I found the policy. I printed out the forms. I passed them out. We filled out the short form. And I was elected to be the person to present the short forms to our manager, which is what I did. And this is a really hard. Step to do. And I was intimidated to do this even as much as I've been a nurse manager and I've been a nurse for so long and yet. I don't know, these situations can still be really gets [00:17:00] confrontation and confrontation is intimidating, no matter which way. You put it.

So I took the short form to our manager and I said, so we're submitting these. I was very clear. It's important to be very clear. we're submitting for safe Harbor. Here's our short form. And the thing is with safe Harbor, you can not just submit for safe Harbor and then say, and I'm out, you know, like I'm somebody safe Harbor, so I don't have to do anything. That's not actually logistically how that works, how that works. Is that. You are submitting safe Harbor for protections for your license. You by doing that by having a nursing license by being employed. By this institution. You have a responsibility to work with the leadership of that institution to come up with a solution. So after submitting the short form. I said, here's what I think we need. If there are any nurses in any other area of the ed or the hospital. [00:18:00] That can be spared.

They need to come to the trauma bay. They need to take these patients and we need to open up hall beds. Which we had not done to this point. I said there, we need an additional resources to take patients to CT because these patients who were traumas, these patients who were in car accidents, who were. they were not getting scanned.

We couldn't figure out the extent of their injury. Yeah, there were a number of other various specific things that were recommended, but essentially the point is this that you work. With your leadership to come up with a solution.

In the immediates. What happened was suddenly hall beds were opened and suddenly we got decompressed. Down to a. Slightly more reasonable situation. It was still absolute bonkers balls to the wall nursing, but at least. I could. [00:19:00] Visualize where I could code someone.

At the end of the shift. we stayed three hours to chart the long form. The long form is I think six questions. The one that we filled out. they're essay type questions. They require you to attach supporting materials. So supporting materials may be a printout of the census. You know, how do you know there were 22 patients in E you know, the trauma bay. The you have to prove it.

They, I asked for evidence-based articles to show that the situation was. Opposed to.

I'm having a hard time, even.

Even verbalizing this because basically what the long form has you do is prove things that everybody knows are already true.

And that's annoying as hell and also that's what we did. I printed [00:20:00] out. Like I said the census, I went to the Ana website and I found, some statements about patient safety and ratios. I found literature articles about ratios, about overcrowding, leading to patient outcomes and things of that nature. and we put all that together in three hours after our shift, we were able to turn those in to our administration. And then we didn't hear any thing for a while.

And then we each got an email the same. Email. Which you're not going to read verbatim, but I'm going to give you the cliff notes and they are basically this. Oh, thank you for submitting a safe Harbor. Your safety is our primary concern as is the safety of our patients. a peer review found that, you in fact were right much to our surprise.

And, did you know that we actually already have processes in place to take care of overcrowding? You know, you wouldn't. Couldn't possibly understand what those are, so I won't go into them, but just know that they're there. And also, would you like to join this committee? That was the [00:21:00] email.

Underwhelming.

And then, then nothing. And it has been nothing for, for weeks now. And. All this to say, I suppose.

Safe Harbor is not a cure. It's. Insurance. Nothing's going to get fixed. Since this shift we have had subsequent shifts. Where maybe we haven't had 22 in the trauma bay, but we've had 20. And it, and it's not going to stop. Like, this is a direct result of. Modern day healthcare. Post pandemic. And the fact that we.

Well, just a lot of things that would take a very, very long time to go into.

But it's not going to stop. So being aware of safe Harbor is important to keep your license intact. Although, I don't think that there was any overt [00:22:00] retaliation for any of us. Certainly nothing overt. However, I did spend my next two shifts in triaged.

for the first time in a long time. And, my managers to this day has difficulty making eye contact with me. What I do it again? Yes. for a number of reasons, it was very validating. It was very validating to get even a form email that reluctantly admitted. That our concerns were valid. it was empowering to get together with my coworkers and all of us say, this is inappropriate. And. It also kind of shows you who your allies are. Which is very important. In this hellscape that we call. Modern day healthcare.

And now it's time for some tips and tricks. pursuant to safe Harbor.

Yeah, let's just get into it. Tip number one. [00:23:00]

We read your PS and PS. Policies and procedures read them. before you need them read the safe Harbor policy, look up on the board of nursing for your state. Look up the Ana statements and rules, and just have a general base knowledge about it because I just. Feel certain you will need it. while you're in the policies and procedures, other policies that I just generally recommend you have a

working knowledge of, or the social media policy, the progressive discipline policy and your code of conduct. Tip number two.

Keep your friends close. No one safe harbors alone. If you're feeling that the situation is inappropriate, then your fellow nurses probably feel this way as well. So gather your allies together and don't go it alone. Tip number three.

Keep your enemies closer.

I don't mean to suggest that admin is your enemy. I just mean sometimes that they [00:24:00] want, the literal opposite of what is best for you and your license. And sometimes your patients. The most professional thing to do when calling safe Harbor. Is to keep your charge, nurse, your supervisor, your manager informed. After. You have filled out the short form. And finally I have one trick.

Use AI to your advantage.

This is gonna sound like it's coming out of left field, but things like chat GPT or Google's Bard, which is available, I believe to some people. Can help you find research articles to support the situation that's going on to support your safe Harbor paperwork. This is what I used in my situation, and it was so much easier than me jumping on CINHAL and trying to find through there. Frankly, antiquated search engine. All of these articles that I needed to show what we already know, and that is [00:25:00] overcrowding and understaffing and patient ratios. That are fucked. Lead to poor patient outcomes up to and including death. But, you know, You can't just say that. Because who's going to take the word of. An educated, licensed, registered nurse.

Yeah. Just Nope. No one, I don't. It's just not. It's not something people do.

I hope you've enjoyed this episode. If so, please subscribe. And tell your nurse friends to listen. Safe Harbor. May not be the cure for what ails healthcare. But it is insurance. As a safeguard your state doesn't have it.

Thank you for listening and have a safe shift.

It's An ED RN is written and produced by me. Our senior editor is me. [00:26:00] The theme song is written and performed by tragically also me. All views and opinions expressed in this podcast are my own and do not reflect the standards and positions of any healthcare entity that I may or may not be working for. Although I am a nurse, things I say in this podcast are not a stand-in for professional medical advice. And everything you hear from randos on the internet should absolutely be validated across multiple other reliable sources.