Law, Regulatory Environment & Nursing JP
TX BON Membership ***IMPORTANT TO KNOW
*6 members from nursing practice* - 2 RNs who are not advanced practice nurses (APNs) - 1 APN from practice or education - 3 LVNs *3 members from nursing education* - baccalaureate education - associate degree education - LVN education *4 members who are consumers (public)* *TOTAL = 13 ** *** NOTICE there is NOT a doctor on the list
Statutory Law
*most common type of law affecting nurses* - Nurse Practice Acts are examples of state statutory laws (defines the cope of nursing practice & expanded nursing roles)
OSHA
- *OSHA 1970* - to assure safe and healthful working conditions - establish standards of safe practice - provide for research, info, education & training in the field of occupational safety and health - *MISSION : to prevent work-related injuries, illnesses, and deaths* (since 1971, occupational deaths have been cut by 62% and injuries have declined by 42%)
mandatory continuing education
- *RNs are required to have 20 hrs of continuing education every 2 years* - RN will be asked on license renewal if you have done required CE - BON randomly audits nurses for verification possible disciplinary actions of BON if ^ not met - denial of application for a license - issue a written warning - administer a public reprimand - limitation on the license that might limit practice or specific activities or stipulate periodic BON review - suspension of the license - assessment of a fine - require counseling, continuing education, practice under supervision of another RN, or public service
types of intentional torts
- *assault* : attempt or threat to touch someone unjustifiably (threatening someone) - *battery* : willful touching of a person that may or may not cause harm - *false imprisonment* : unjustifiable detention of a person without legal warrant to confine the person (ex: restraining someone without orders) - *invasion of privacy* : breach of confidentiality (ex: HIPA) *defamation* : communication that is false, or made with careless disregard for the truth and result in injury to the person's reputation - *libel* : defamation by print. writing, pictures - *slander* : defamation by the spoken word
categories of potential hazards found in hospitals
- *biological* : infectious/biological agents that may be transmitted by contact with infected pts or contaminated secretions/fluids (ex: MRSA, Hep B, VRE, TB) - *chemical* : chemicals that are potentially toxic or irritating to the body system including medications, solutions, gases (ex: chemo therapy, anesthetic agents, formaldehyde) - *psychological* : workplace factor that create or potentiate stress, emotional strain, and/or other interpersonal problems (workplace violence, inadequate staffing, increased pt acuity) - *physical* : agents within the work environment that can cause tissue trauma (radiation, lasers, noise, violence, electricity) - *environmental, mechanical/biomechanical* : factors encountered in the work environment that cause or potentiate accidents, injuries, strain, or discomfort (tripping hazards, unsafe equipment, air quality, slippery floors, temp extremes, etc)
health insurance portability and accountability act - HIPAA
- *federal legislation : 1996 ***KNOW THIS* - national standards for electronic health care transactions - national identifiers for providers, health plans and employers - *security and privacy of health data*
nursing malpractice MOST COMMON CLAIM AGAINST NURSES
- *most common unintentional tort action brought against nurses is a malpractice claim* - important for nurses to know basic elements that must be proved before malpractice can occur
types of unintentional torts
- *negligence* : misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent person - *malpractice* : professional negligence
the basic elements of malpractice
- *nurse must have a duty* (in other words, there must be a professional nurse-pt relationship) - nurse must have *breached that duty* (you must have fallen below the standard of care for a nurse) - nurse breach of duty *must have been a forseeable cause of the pt's injury* - *damages or injury must have occurred*
difference between BON and nursing associations (ANA, NLN, etc)
- BON is to protect the welfare of the public & has authority over all nurses in licensed state - Nursing associations generally promote welfare of nursing and practice : have voluntary membership
malpractice elements : what about the nurse practice act?
- acts describe what nurses may do - fairly general - what's prohibited = more specific
DNR
- all 50 states have enacted advance directive legislation - TX advanced directives act : known as *TX Futile Care Law*
malpractice elements : what is an expert witness
- common way to establish duty owed - testifies what a reasonable nurse would do in similar circumstances
malpractice elements : what are established policies and procedures?
- crucial pieces of evidence for *establishing standard of care * - resources for questions regarding certain procedures
major provisions of the NPA
- definition of nursing - established the BON and sets administrative functions and process - requirements for licensure and renewal of licensure - *whistleblower protection for nurses*
what happens when i go to court? - at deposition
- look/act like a professional, be prepared - be clear, accurate, and very concise - give NO opinions, STICK TO FACTS - speak slowly, use well-modulated tone - ask for questions to be repeated if you don't understand or don't remember - correct any misstatements - don't become angry or give emotional responses - avoid "always", "never", "maybe", "i think", or "possibly" - do not answer more than is asked
guidelines for computer records
- personal password required to enter and sign off computer files - after logging on, never leave a computer terminal unattended - do not leave pt info displayed on the monitor where others may see it - shred all unneeded computer-generated worksheets - firewalls need to be installed to protect the server from unauthorized access
mission of board of nursing
- protect and promote the welfare of the people of TX - ensures that licensed nurses are competent to practice safely ***ANY continuing education is monitored by them***
whistleblower protections
- protections available to a nurse that prohibit retaliatory action by an employer or other entity (ex: cannot fire you or move you) - protections : refusal to engage in conduct relating to pt care that would violate NPA or BON, making a lawful report to unsafe practitioners/unsafe pt care practices or conditions
HIPAA compliance and nursing practice
- pts name cannot be posted near or on room door - charts should be in secure, non-public space - printed copies of health info should not be in unattended at fax or printer - notice informing pts of their rights ab privacy and their health info should be posted - voice levels should be lowered to minimize disclosure of info - nurses must stay current with HIPAA regulations
licensure for the APN/RN/LVN
- to practice, you must have a license - you may not use the titles if you have not met the requirements of the BON and been granted a license to practice - you may not wear jewelry or other insignias with RN or LVN on it unless you are licensed
the joint commission (TJC)
-*Non-profit organization founded to evaluate and accredit hospitals* -Establishes standards for quality and safety -Accredits more than 17,000 hospitals in US (88% of US hospitals) -*On-site evaluation of hospitals every 3 years* (possibly sooner) *MISSION : the continuously improve health care for the public*, in collaboration with other stakeholders, *by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value* - bottom line = SAFE CARE
center for medicare and medicaid services (CMS)
-Office in US Dept Health & Human Services -Importance of M&M: *fund hospitals and other providers who deliver care to M&M patients* Administers: -Medicare funding -Medicaid funding -State Children's Health Insurance Program -HIPAA *CMS will not reimburse if these occur during hospitalization* - pressure ulcers - preventable injuries such as fractures, dislocations, and burns - catheter associated UTIs (CAUTIs) - vascular catheter associated infections - certain surgical site infections - objects mistakenly left inside surgical pts - air emboli - blood incompatibility reactions
laws governing nursing practice
1903 First Nursing Practice Act - north carolina - *did NOT define nursing* - people could practice nursing, but COULD NOT USE TITLE "RN" 1938 New York passed first mandatory NPA - required applicants to pass licensure exam - has to pass exam to use "RN" 1970s All states has passed the mandated licensure of nursing
what happens when i go to court?
95% of personal injury lawsuits are either dismissed or settled out of court discovery process - *interrogatories* : written questions - *deposition* : recorded oral questioning
safe harbor
A process that *protects a nurse from employer retaliation and licensure sanction* when a nurse makes a good faith request for peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. the process - a nurses request for safe harbor *MUST BE MADE IN WRITING* before the assignment is accepted by the nurse - if you don't have time to immediately fill out the from, you can submit a quick request for safe harbor
good faith
Taking action supported by a reasonable factual or legal basis
torts
civil actions - plaintiff files lawsuit for compensation for damages suffered from the perceived wrong intentional torts = deliberate acts unintentional torts = incidents or accidents - don't intentionally wanna cause harm
statutory law is either criminal or civil
criminal law : occur when you have done something considered harmful to society as a whole - can be a misdemeanor or felony offense civil law : concern private interests and rights between individuals involved in cases sometimes an event can be BOTH
common law
decisions made by judges in court cases - ex: patients right to refuse treatment - *ex: negligence & malpractice*
malpractice elements : what about accreditation and facility licensing?
evidence of standard of care for nurses working with accredited facilities
minimum due process for nurses
exclude from committee, including attendance at the peer review hearing, any persons with administrative authority for personnel decisions directly relating to the nurse required is a description of the events to be evaluated of the incident, circumstances and conduct, specific dates, times, locations and individuals involved provide the nurse opportunity to - submit a written statement regarding the event under review - call witnesses and question witnesses - be present when testimony or evidence is being presented - ask questions of the committee and respond to questions of the committee - make an opening & closing statement an incident based *peer review committee's decision cannot be overruled, changed, or dismissed* a nurse has the right to be accompanied by a nurse peer or an attorney
nursing history in TX
first nursing school : John sealy hospital school of nursing - Galveston, TX 1890
TX nursing practice act
graduate nurses association of TX - concerned nurses who wanted control of nursing education to be by nurses first passed TX legislature in 1907 Nursing Practice Act is generally amended **EVERY 2 YEARS** during regular session of TX legislature
every hospital adheres to standards of practice
guide professional behavior of nurses *used as standard in issues related to practice and malpractice* nurses must know and confirm - NPA - rules and regulations - federal, state, local laws affecting their area of practice
advance directives is in effect until
it is revoked - can be revoked at any time
what evidence can help me in a law suit?
medical record - 1 of 4 cases are decided on basis of what is in the medical record - integrity, accuracy, and completeness makes claim defensible or indefensible (this is what you do or see and etc, objective) - *good documentation - BEST DEFENSIVE ACTION* - document extensively, accurately, and very factually
major provisions of NPA
nurses must report to other nurses - who violate NPA or BON rules and contribute to death or serious injury of a pt - whose practice is impaired by chemical dependency or drug or alcohol abuse - who's conduct constitutes abuse, exploitation, fraud, or a violation of professional boundaries - who lack knowledge, skill, judgement, or conscientiousness and could result in harm of a pt nurses must report nursing students whose ability to perform the services of the nursing profession would be impaired by chemical dependency nurse compact - *mutual recognition model of licensure* - allows you to be licensed in one state and practice in other compact states - states must enact legislation to authorize nurse license compact nurse must reside in state
who might have a liability (responsibility) in a claim?
personal liability - each individual accountable for their own actions - you are held to professional standard of care physician & other independent practitioner liability - NOT ultimately responsible for everything that happens to a pt - nurses follow orders, but not those unsafe for pts or out of scope of practice supervisory liability - task properly assigned to competent worker - adequate supervision provided - nurse provided appropriate follow-up evaluation of delegated task institutional liability - carry insurance - policies or lack of common claim in court student liability - responsible for own actions - held to standard of RN for performed tasks - don't accept assignments beyond preparation - communicate frequently with instructors
constitutional law
refers to the right, privileges, and responsibilities from the US constitution, including Bill of Rights - (what we get as a citizen of this country)
regulatory or administrative law
rules and regulations passed by State Boards of Nursing - ex: requirement to report incompetent or unethical nursing conduct to BON - *regulates licensing and continuing education programs* - renew every 2 YEARS
informed consent
the only thing the nurse needs to do is witness the signature - she said this is all we need to know ab this the nurse attests to - *authenticity* : the signature belongs to the pt - *voluntariness* : the pt was not forced to sign - *capacity *: the pt understood the explanation of the procedure, the risks and alternatives, read the consent form, understood consent form, and agreed to the proposed treatment (make sure they are not under the influence of narcotics)
if no advance directive & pt is incapable or incompetent of communication
treatment decision can be made by the physician and one of these in ordered listed 1. the pts spouse 2. the pts reasonably available adult children 3. the pts parents 4. the pts nearest living relative if no guardian or fam member present, then what? - *physician and another physician who is NOT involved in the treatment of the pt or who its on the hospital ethics committee can make the decision*
malpractice elements : do you have a professional duty? what is the professional duty owed?
yes - *nurse-pt relationship* - *good samaritan statues* : give immunity from malpractice to those attempting to give assistance at the scene of an accident prof duty owed : act as a reasonable/prudent nurse would under same or similar circumstances
examples of OSHA requirements
- PPE - *bloodborne pathogens* : safety needles, no recapping needles, dont bend needles - *airborne pathogens* : engineering for safety of hospital environment (neg pressure rooms for TB pts) - *ergonomics* : procedures in place for back safety (safe pt handling procedures) - *reproductive hazards*: safety when working around Xrays
functions of the BON
- established standards of practice and regulates practice - interprets NPA & rules & regulations to nurses and the public - investigates possible violations of NPA - disciplines qualified applicants to practice nursing - RN, LVN, APN - grants licensure to nurses from other states - recommends to legislature appropriate changes in NPA - *established standards for nursing education and approves nursing education programs* - provides consultation to nursing education programs - provides advice and counsel to faculty, staff of health agencies, utilizing nurses, and to nurses to improve professional service
nurse incident based peer review
- evaluate the nursing services of a nurse - evaluate the qualifications of a nurse - evaluate the quality of pt care by a nurse - evaluate complaints concerning a nurse or nursing care - conclude a recommendation regarding a complaint
peer review for nurses
- evaluation process of quality of care (from urself and a manager) - 2 kinds of peer review 1. *incident-based* (something untort happened to pt & caused the pt harm - settle at hospital) 2. *safe harbor* (if a nurse shows up to work and feels compromised, they can use this; ex: there is too many pts and too little nurses; this is basically asking for help and protecting the nurses) - *organizations that employee more than 10 nurses must have a peer review plan* (hear all the facts) - all proceedings are confidential
categories of negligence
- failure to follow standards of care (protocols) - failure to use equipment in a responsible manner - failure to communicate - failure to document - failure to assess and monitor - failure to act as patient advocate
medical durable power of attorney
- grants another person the right to act on legal representative for you to make decision related to medical care
*healthcare workers have more workplace injuries than any other industry*
- healthcare workers outnumber constructions workers 2-1 - 20 times more OSHA inspections of construction sites than healthcare sites - $7 billion on back related injuries each year
discontinuing life-sustaining treatment
- if physician determines that life-sustaining treatment is futile, the pt and representatives are given info ab discontinuing treatment - *they are given 10 days to find another hospital that will accept the pt for transfer* - physician, hospital ethics committee will review case - *pt informed 48 hrs before review of case* - following agreement of ethics committee that life-sustaining treatment is inappropriate, *after 10 days the physician and hospital may discontinue treatment*
advance directive - *2 signatures & at least 1 witness* can't be someone who:
- is related to you by blood or marriage - has a claim on your estate - has been designated by your to make a health care treatment decision on your behalf - your attending physician - is employed by your attending physician - is an employee of a health care facility in which you reside, *if the employee is involved in providing direct pt care to you*
advance directive
- legal document that allows a person to make a decision about end-of-life care (if the pt is unable to do so) - directs physician ab preferences at end of life (either all treatments to be continued or discontinued)
role of legislature and BON
- legislature passes changes to NPA - BON interprets the NPA and develops rules and regulations to implement the NPA
specific protections of HIPAA
- limits the use of pre-existing condition exclusions - prohibits health plans from discriminating by denying coverage or charging extra based on past or present poor health - guarantees small employers and people who lose job-related coverage *the right to purchase health insurance*
unprofessional conduct
- listed rules and regulations relating to nurse education, licensure and practice - intended to protect clients and the public from incompetent, unethical, or illegal conduct or licenses - *identification of unprofessional or dishonorable behaviors* (ex: deceit, defraud, injure a pt/public)
licensure with history of criminal convictions
ABSOLUTE BARS TO LICENSURE - murder - kidnapping - sexual assault - aiding in suicide - robbery
