§ 43-26-12 — Exceptions to operation of article; burden of proof

(a) No provision in this article shall be construed to require licensure in Georgia as a registered professional nurse in: (1) The practice of nursing by students that is an integral part of a curriculum in a board approved nursing education program leading to initial licensure; (2) The rendering of assistance by anyone in the case of an emergency or disaster; (3) The incidental care of the sick by members of the family, friends, or persons primarily utilized as housekeepers, provided that such care does not constitute the practice of nursing within the meaning of this article; (4) Caring for the sick in accordance with tenets or practices of any church or religious denomination which teaches reliance upon spiritual means through prayer for healing; (5) The performance of auxiliary services in the care of patients when such care and activities do not require the knowledge and skill required of a person practicing nursing as a registered professional nurse and when such care and activities are performed under orders or directions of a licensed physician, licensed dentist, licensed podiatrist, or person licensed to practice nursing as a registered professional nurse; (6) The practice of nursing as a registered professional nurse, by a person licensed so to practice in another state, who is employed by the United States government or any bureau, division, or agency thereof while in the discharge of that person's official duties; (7) The practice of nursing as a registered professional nurse, by a person currently licensed so to practice in another state, who is employed by an individual, agency, or corporation located in another state and whose employment responsibilities include transporting patients into, out of, or through this state for a period not to exceed 24 hours; (8) The practice of nursing as a registered professional nurse by a person currently licensed so to practice in another state, who is visiting Georgia as a nonresident, in order to provide specific, nonclinical, short-term, time limited services including, but not limited to, consultation, accreditation site visits, and the participation in continuing education programs; (9) (A) The performance of health maintenance activities by a proxy caregiver pursuant to a written plan of care for a disabled individual when: (i) Such individual or a person legally authorized to act on behalf of such individual has executed a written informed consent designating a proxy caregiver and delegating responsibility to such proxy caregiver to receive training and to provide health maintenance activities to such disabled individual pursuant to the written orders of an attending physician, or an advanced practice registered nurse or physician assistant working under a nurse protocol agreement or job description, respectively, pursuant to Code Section 43-34-25 or 43-34-23 ; (ii) Such health maintenance activities are provided outside of a hospital or nursing home and are not provided by a medicare-certified home health agency or hospice organization and if alternative sources are available, Medicaid is the payor of last resort; and (iii) The written plan of care implements the written orders of the attending physician, advanced practice registered nurse, or physician assistant and specifies the frequency of training and evaluation requirements for the proxy caregiver, including additional training when changes in the written plan of care necessitate added duties for which such proxy caregiver has not previously been trained. A written plan of care may be established by a registered professional nurse. Rules, regulations, and policies regarding training for proxy caregivers pursuant to this paragraph shall be promulgated by the Department of Behavioral Health and Developmental Disabilities or the Department of Community Health, as applicable. Such rules shall include selection by the Department of Behavioral Health and Developmental Disabilities and the Department of Community Health for approval of training curricula specifically designed for the purpose of implementing the health maintenance activity of medication administration to be implemented by such proxy caregivers employed or contracted to providers of home and community based services, community residential alternative services, or community living services. With such rules, providers shall train proxy caregivers in accordance with the selected curriculum or otherwise provided for in rules, regulations, and policies. (B) An attending physician, advanced practice registered nurse, or physician assistant whose orders or written plan of care provide for the provision of health maintenance activities to a disabled person shall not be vicariously liable for a proxy caregiver's negligent performance of health maintenance activities unless the proxy caregiver is an employee of the physician, advanced practice registered nurse, or physician assistant. Any person who trains a proxy caregiver to perform health maintenance activities for a disabled individual may be held liable for negligently training that proxy caregiver if such training deviated from the applicable standard of care and was a proximate cause of injury to the disabled individual. (C) For purposes of this paragraph, the term: (i) "Disabled individual" means an individual who has a physical or mental impairment that substantially limits one or more major life activities and who meets the criteria for a disability under state or federal law. (ii) "Health maintenance activities" are limited to those activities that, but for a disability, a person could reasonably be expected to do for himself or herself. Such activities are typically taught by a registered professional nurse, but may be taught by an attending physician, advanced practice registered nurse, physician assistant, or directly to a patient and are part of ongoing care. Health maintenance activities are those activities that do not include complex care such as administration of intravenous medications, central line maintenance, and complex wound care; do not require complex observations or critical decisions; can be safely performed and have reasonably precise, unchanging directions; and have outcomes or results that are reasonably predictable. Health maintenance activities conducted pursuant to this paragraph shall not be considered the practice of nursing. (iii) "Proxy caregiver" means an unlicensed person or a licensed health care facility who has been selected by a disabled individual or a person legally authorized to act on behalf of such individual to serve as such individual's proxy caregiver, provided that such person shall receive training and shall demonstrate the necessary knowledge and skills to perform documented health maintenance activities, including identified specialized procedures, for such individual. (iv) "Training" means teaching proxy caregivers the necessary knowledge and skills to perform health maintenance activities for disabled individuals. (D) Good faith efforts by an attending physician, advanced practice registered nurse, physician assistant, registered professional nurse, or providers of home and community based services and other persons approved by the department to provide training to a proxy caregiver to perform health maintenance activities shall not be construed to be professional delegation. (E) Such rules and regulations shall be promulgated pursuant to this paragraph no later than January 1, 2018; and (10) The administration of liquid morphine by a certified medication aide pursuant to subparagraph (g)(7)(G) of Code Section 31-7-12.2 . (b) In a civil or administrative proceeding under this chapter, a person claiming an exemption or an exception pursuant to subsection (a) of this Code section has the burden of proving this exemption or exception. In a criminal proceeding, the burden of going forward with evidence of a claim of exemption or exception pursuant to subsection (a) of this Code section is on the person claiming the exemption or exception.

Legislative History

Amended by 2019 Ga. Laws 320,§ 2, eff. 5/11/2019. Amended by 2017 Ga. Laws 218,§ 1, eff. 7/1/2017. Amended by 2011 Ga. Laws 245,§ 43, eff. 5/13/2011. Amended by 2010 Ga. Laws 675,§ 1, eff. 7/1/2010.