Legal Issues: Whistleblowing Obligation to Report
Follow the chain of command that is posted
-All facilities have and post the hierarchy of command -Policy and procedure will state the flow of the chain of command -Most problems can be resolved at the supervisor level -All employees need to know who they can notify beyond their direct supervisors
nurses should follow these steps:
-Document the violation. -Record all interactions pertaining to the whistleblowing incident. -Stay objective by only chronicling the facts and not making personal judgements. -Put the complaint in writing. -Before proceeding with the whistleblowing, consult with your state nurses' association or legal counsel.
Failure to report:
A Class 1 misdemeanor carries a maximum penalty of 120 days in jail, possible community punishment and a discretionary fine and court costs.
Child Abuse or neglect:
Abuse is the intentional maltreatment of a child and can be physical, sexual or emotional in nature. Neglect is the failure to give children the necessary care they need. Juvenile: A juvenile is defined as a person younger than 18 who is not married, emancipated, or a member of the U.S. Armed Forces.
Disabled adult:
Any person 18 years of age or over or any lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated due to an intellectual disability, cerebral palsy, epilepsy or autism; organic brain damage caused by advanced age or other physical degeneration in connection therewith; or due to conditions incurred at any age which are the result of accident, organic brain damage, mental or physical illness, or continued consumption or absorption of substances.
Human Error is not reportable????????
Behavioral choice that increases risk where risk may not be recognized or is mistakenly believed to be justified Nurse does not appreciate risk Unintentional risk taking Performance or conduct does not pose a continuing practice risk to clients or others.
Violent offense
Causes serious bodily injury (risk of death, coma, permanent disfigurement); causes physical/mental injury; & includes an attempt, solicitation or conspiracy to commit or aid and abet any of these offenses
Name of Law: "Protection of the Abused, Neglected, or Exploited Disabled Adult Act":
Determined to protect the increasing number of disabled adults in North Carolina who are abused, neglected, or exploited, the General Assembly enacts this Article to provide protective services for such persons
Cases filed:
Diane McNamara and the Denver VA Medical Center - McNamara filed a suit against the United States government citing serious problems with the nursing care at the healthcare facility where she worked as an overnight nurse. A judge ruled in her favor. Cecilia Guardiola and Banner Health - The healthcare system agreed to pay approximately $18 million to settle whistleblower claims brought forward by Guardiola, a former employee. Guardiola is an RN who was hired as a director to oversee clinical documentation. She resigned after three months when she discovered that Medicare was improperly billed for services. Katrina Wesemann and Heritage Enterprises Inc. - Wesemann was a nurse who worked for the Heritage Health nursing home. She was fired after reporting the abuse and neglect of patients. The nurse won her lawsuit against the company and was awarded $5.2 million.
Recognizing child abuse:
Displays sudden change in behavior or school performance Has bruises at any stage in fleshy, nonprominent areas of body: behind arms, backs of legs Cowers with approaching adults or with loud voices Displays overly sexual behavior Has physical injuries that have not been treated/seen by medical professionals
just Culture:
Encourages open reporting of errors, Recognizes that errors may be systemic rather than personal failures Focuses on determining the root of the problem Focus on evaluating the behavioral choices made by an individual, not on the outcome of the event Require leadership commitment and modeling Distinguish among normal human error, unintentional risk-taking behavior, intentional risk-taking behavior, and reckless behavior Foster a learning environment that encourages reporting (including self-reports) of all near misses, mistakes, errors, adverse events, and system weaknesses Lends itself to continuous improvement of work processes and systems to ensure the highest level of client and staff safety Encourage the use of non-disciplinary actions whenever appropriate (including coaching, counseling, training, and education) Hold individuals accountable for their own performance in accordance with their job responsibilities Does not expect individuals to assume accountability for system flaws over which they had no control
adult/ elder financial abuse:
Financial abuse: includes forging checks, taking someone else's retirement and Social Security benefits, or using another person's credit cards and bank accounts. It also includes changing names on a will, bank account, life insurance policy, or title to a house without permission from the older person. Healthcare fraud: Includes overcharging, billing twice for the same service, falsifying Medicaid or Medicare claims, or charging for care that wasn't provided.
HAI
Health care-associated infection means a localized or systemic condition resulting from an adverse reaction to the presence of an infectious agent(s) or its toxin(s) with no evidence that the infection was present or incubating at the time of admission to the health care setting.
At Risk behaviors may or may not be reportable
If the behavior is repetitive and is not changed by intervening w/ facility coaching, education, training, assignments within appropriate knowledge and skills. Is the nurse able to recognize their behavior choices and personal performance is an issue with safety?
what are examples of conduct issues
It is important to note that confidentiality, fraud, theft, drug abuse, impairment on duty, drug diversion, boundary issues, sexual misconduct, and mental/physical impairment are not appropriate for evaluation using the CET. These events/issues are conduct and health-related issues, not practice incidents or events, and MUST be reported to the NC Board of Nursing.
Examples of Reckless Behavior:
Leaves workplace before completing all assigned patient/client care and does not report off to oncoming shift. Observes patient/client safety issue but walks away without intervening because it was not her assigned patient/client. Makes serious medication error, realizes it when client experience's adverse reaction, tells no one, denies any knowledge of / reason for change in client condition, and falsifies documentation to conceal error.
what not to report Systems Issues, including but not limited to
Malfunctioning Equipment Staffing/Work Hour Issues Physician/Nurse Communication Barriers Outdated Policies/Procedures (does not reflect current evidence-based practice) Inappropriate Assignment Practices
Reckless Behavior Definition:
Nurse makes the behavioral choice to consciously disregard a substantial and unjustifiable risk. The nurse's action or inaction is intentional and purposeful. The nurse puts own self/personal interest above that of the client, organization, or others. Reckless Behaviors by a nurse must be reported to the Board. Criteria: Refer to the NCBON Complaint Evaluation Tool (CET) -Reckless Behavior Section (2 Red Columns) -each behavior evaluated in these columns is valued at 4 or 5 points.
What Should Nurses Do Before Blowing the Whistle?
Nurses may expose themselves to prosecution if they do not take the appropriate measures. To safeguard against legal retribution for whistleblowing, nurses should follow these steps:
When to report to NCBON
Positive pre-employment drug screens Positive results on a "for-cause" drug screen Signs and symptoms of impairment including the smell of alcohol on the breath, regardless of whether or not the impairment is alleged to be as a result of the nurse's own prescription meds Reports of excessive use of controlled substances, increased wastage, sloppy or careless wasting, consistent failure to follow facility policies for wasting controlled substances, documentation discrepancies, manipulation of medication dispensing systems Any time there is a violation of the Nursing Practice Act
Response to Reckless Behavior:
Report to Board for Investigation Disciplinary Action by Board
What does it mean to go up the chain of command?
Reporting internally by using the chain of command is a good place to start. It assists with quality improvement, enhances incident reporting and debriefing, draws light to clinical supervision (present or not present), maintains professional standards and integrity in practice. Exhausting all manners of reporting internally to right a wrong is a minimum standard for all healthcare professionals. It is standard to have a policy that states who to notify and the acceptable response time before they climb to the next level of command.
Misconduct:
Self-reports regarding arrests or indictments should now be made to the North Carolina Board of Nursing within 30 days for any of the following: Failure to respond to the Board's inquiries in a reasonable manner or time regarding any matter affecting the license to practice nursing is reason for disciplinary action by NCBON
Nurses who become whistleblowers may endure backlash such as being
Shunned or ostracized by coworkers Considered disloyal to the company Fired by the employer Sued by the employer or the accused offender
•Private groups, such as ___________________, do not confer protection. You must report to a state or national regulator
The Joint Commission or the National Committee for Quality Assurance,
adult / elder Abuse
Willful infliction of physical pain, injury or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services necessary to maintain mental and physical health
Is There Danger Involved in Whistleblowing?
Yes, nurses may suffer repercussions for bringing attention to misconduct. Some employers would rather sweep their misdeeds under the rug to avoid financial consequences and damage to their reputation.
Adult/Elder Neglect:
a disabled adult who is either living alone and not able to provide the services necessary to maintain mental or physical health (self-neglect), or who is not receiving services from his caretaker
Employers may be able to be the first line of intervention in
addressing violations that pose little ongoing risk to the public. In these situations, employers may be able to address deficits in a nurse's behavior and practice including judgment, knowledge, training, or skill in collaboration with the Board.
Domestic violence
attempting to cause bodily injury or placing a victim or a member of the victim's family in fear of serious bodily injury or continued harassment resulting in significant emotional distress. Includes stalking, rape and sexual offenses. In NC domestic violence does not have to involve physical harm in order to be considered a crime. Any crime can be classified as an act of domestic violence when perpetrated against anyone in a "personal relationship" with the offender as defined under North Carolina's Domestic Violence Statute.
The NCBON has made
concerted and consistent efforts to move away from a culture of blame and shame and toward a culture of quality improvement with an emphasis on patient safety.
It is important that nurses who
discover proof or see a breach in the standards of practice speak out while adhering to protocols for whistleblowing. They should not engage in spreading rumors, no matter how true they may be. Instead, they need to handle the situation in a proper manner. Otherwise, a patient's privacy may be violated or unjust assertions can irreparably disgrace individuals or companies. Nurses must proceed carefully, ethically and responsibly.
Obligation to report
duty to report
Whistleblowing is an
ethical and moral dilemma It is an opportunity for patient/client and community advocacy Standards must be met and maintained, and patient rights and privacy cannot be breached
Nurses are responsible for being
familiar with the state-specific laws and rules governing their practice.
•Wrongdoing happens in all occupations; .
however, unethical behavior in nursing can jeopardize the well-being of patients or even result in fatalities. That is why it is imperative for nurses to stay vigilant and report improper behavior. It is not easy to be a whistleblower, but nurses have a responsibility to protect patients
This is particularly true when there are mechanisms in place in the nurse's practice setting to
identify near misses and nursing errors, •detect patterns of practice, •take corrective action monitor the effectiveness of remediation.
Adult/Elder Exploitation:
illegal or improper use of a disabled adult or his resources (including financial resources) for another's profit or advantage.
Sexual offense:
inappropriate sexual contact with juveniles (a child by an adult or with a person who is younger than 15 years of age). •Can include a wide array of sexual offenses including rape, attempted rape or sexual offense, sexual offenses, sexual activity, sexual battery, human trafficking (including promoting, patronizing, or permitting a minor in "prostitution"***), incest, employing or permitting a minor to assist in offenses against public morality and decency, sexual exploitation of minors, felonious indecent exposure, indecent liberties with children/student, solicitation of a child by computer/electronic devices to commit an unlawful sex act, and a parent or guardian committing or allowing a sexual act upon the juvenile.
•Although it is not required by every regulatory agency,
it is a good rule of thumb to put your complaint in writing.
When nurses blow the whistle,
it means that they are revealing an unsafe, unethical or illegal circumstance. The issue can be reported internally to someone in authority or externally to people outside of the healthcare organization. Whistleblowers may be former or current employees who have uncovered or witnessed an offense.
A whistleblower is a person who
justifiably discloses dishonest or harmful actions.
Nurses must not
look the other way when abuse or harm occurs
North Carolina is a "mandatory" reporting state what does that mean
meaning that nurses and others are required to report to the Board any suspected violations of the Nursing Practice Act.
Misdemeanor child abuse
occurs when a parent/caretaker of a child who is 15 or younger inflicts or allows to be inflicted physical injury to the child by nonaccidental means or creates or allows to be created substantial risk of physical injury to the child by nonaccidental means or
Actions nurses can take to promote a "Just Culture"
report errors, near misses, and other events - encourage colleagues to report their own events - discuss with colleagues what can be done to prevent future events - partner with your manager in communicating your unit's experiences to the nursing practice council or quality council
The Board believes protection of the public is not enhanced by
the reporting of every one-time minor event or incident that may be a violation of the North Carolina Practice Act
•Blowing the whistle means that
you report your concern to the national and/or state agency -responsible for regulation of the organization for which you work or, in the case of criminal -activity, to law enforcement agencies as well.
Reporting Impairment of Coworkers• What does it mean to be impaired? •Protect client/staff:
ØRemove nurse from situation or assignment if the client/staff could be in imminent danger. •Follow facility Policy/Procedure for suspecting impairment •Use chain of command to address issue •If drug screening is requested, assure adherence to strict chain of custody protocols •Refer to NCBON
External Agencies for Reporting:
• Centers for Medicare and Medicaid services (CMS) • The Joint Commission • Office of the Inspector General (DHHS) • The Attorney General of the state • Media • Seek Legal Representation
What to Report:
•Abuse (Child, Elder, Domestic Violence) •Communicable Diseases •Impairment of Coworkers •Misconduct •Reckless behavior
Personal Relationship includes the following
•Are current or former spouses; •Are persons of opposite sex who live together or have lived together; •Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; •Have a child in common; •Are current or former household members; •Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.
•Healthcare Associated Illnesses (HAI)
•CLABSI: Central line associated blood stream infections •CAUTI: Catheter associated urinary tract infections •MRSA: Methicillin-resistance Staphylococcus aureus •SSI: Surgical Site Infections CDI: Clostridium difficile infection
Reporting: Where to start?
•Chain of Command •Incident Reports •Internal structures/Mechanisms for reporting (Patient Experience/Liaison) •Compliance Officer
Reporting Child Abuse
•Child Abuse: •Violent offense •Misdemeanor Child abuse •Sexual offense
Things to know about Whistle Blowing: Consult
•Consult with your state nurses association or legal counsel if possible before taking action to determine how best to document your concerns.
Things to know about Whistle Blowing: Do not expect
•Do not expect those that are engaged in unethical or illegal conduct to welcome your questions or concerns about this practice
Things to know about Whistle Blowing:
•Document all interactions related to the whistle-blowing situation and keep copies for your personal file, NURSING. •Keep documentation and interaction's objective. •Remain calm and do not lose your temper, even if those who learn of your actions attempt to -provoke you. •Remember that blowing the whistle is a very serious matter. Do not blow the whistle frivolously. Make sure you have the facts straight before taking action.
Reporting Domestic Violence
•Emotional or physical abuse •Domestic restraint •Intimidation •Coercion/Threats
Behavior Problems At-Risk Behavior
•Exceeding scope of practice •Pre-documentation •Minor deviations from established procedure
What not to report cont:
•Falsification of employment application (except when falsification relates to licensure status) •Failure to follow agency policy (unless there is ALSO a violation of the Nursing Practice Act) •Information related to mental or physical conditions of a nurse, obtained while providing care for the nurse (protected information) •Systems Issues
Reasons to "Blow the Whistle" "Blow the Whistle
•Financial Fraud-In addition to patient safety, fraudulent billing is a deceitful and unlawful practice and has an impact on the cost of healthcare for everyone. •Patient/client safety-Nurses have a professional obligation to keep patients free from harm and stop illicit and immoral acts in healthcare •Neglect - the neglect or abuse of patients. •Unprofessional practices or illegal actions
Reporting Domestic Violence In NC can also include:
•Harassing phone calls •Stalking •Communicating threats •Assault by pointing a gun •Domestic criminal trespass •Damage to personal property •Violation of a protective order •Interference w/ emergency communication
What not to report:
•Human Error •No Call-No Show •Failure to complete a resignation notice or abrupt termination •Refusal to accept an assignment •Rudeness or non-threatening verbal interactions with patient or staff •"Nodding" or momentary unintentional falling asleep, unless this is a pattern of behavior, or results in patient neglect or risk
Things to know about Whistle Blowing: Reserve
•If you identify an illegal or unethical practice, reserve judgment until you have adequate documentation to establish wrongdoing
Many reportable diseases/illnesses have a timeline for when it should be reported.
•Immediate reporting is required for potential bioterrorism-related diseases, such as anthrax and botulism; •Severe or highly communicable diseases, such as cholera and cryptosporidiosis (highly contagious intestinal infection), must be reported within 24 hours of diagnosis; •Confirmed cases or suspected cases of reportable diseases are reported to the local health department, which in turn reports this information to the N.C. Division of Public Health. •NC Emergency department visits are reported to the Division of Public Health (DPH), which in turn provides the data, as authorized by North Carolina law and in accordance with HIPAA regulations, to the CDC. •HAIs are reported directly by healthcare facilities to the CDC's National Healthcare Safety network......which then provides the data to N.C. DPH.
Reporting Behavior:
•Misconduct •At-Risk Behavior •Reckless behavior
Cons Whistleblowing:
•Moral Dilemma •Isolation •Frustration •Feelings of disillusionment •Powerlessness •Professional Repercussions •Job loss •Backlash; ridicule; ostracism; intimidation
who do we report child abuse to
•Notify local Department of Social Services •May need to notify police esp. if violent offense
North Carolina Board of Nursing Complaint Evaluation Tool (CET):
•Once employers or nursing leaders have evaluated the nursing practice event using the CET, they follow the directives in the three boxes at the bottom of Page 2. •Final determination of reportability lies with the Board, but the determination of alternatives for resolution of events determined to not require reporting are based on collaborative consideration.
Pros Whistleblowing:
•Patient advocacy •Recognizes abuse or harm •Reveals unethical and illegal situations or practices •Strengthen the model of care •Protects the economy and the public
Reporting Adult/Elder Abuse types of abuse
•Physical •Emotional •Neglect •Abandonment •Sexual Abuse •Financial abuse •Healthcare fraud
Reporting Communicable Diseases •Who can report?
•Physicians •School administrators and childcare operators •Medical facilities & Emergency Depts •Operators of restaurants & food/drink establishments •Laboratories
•Reckless behavior
•Reckless behavior •Behavioral choice that consciously disregards a substantial and unjustifiable risk. •Action or inaction is intentional and purposeful. •Puts own self/personal interest above that of the client, organization, or others
Things to know about Whistle Blowing: Remember
•Remember, you are not protected in a whistle-blower situation from retaliation by your employer until you blow the whistle.
Reporting Adult/Elder Abuse who do we report to
•Report abuse to local Department of Social Services in the county where the person lives. •North Carolina Department of Health and Human Services CARE-LINE toll free at (800) 662-7030.
Reporting Child Abuse Report contents:
•Reporter's name, address, phone # •Juvenile's name, age, address, and present whereabouts if not at home; •Name & address of juvenile's parent, guardian, custodian, or caretaker; •Name, address, and age of person who committed the offense; •Location of where the offense occurred; •Nature and extent of any injury or condition that resulted from the offense; •Names and ages of any other juveniles present or in danger; and •Any other information that might be helpful in establishing the need for law enforcement involvement.
Things to know about Whistle Blowing: Seek
•Seek the counsel of someone you trust outside of the situation to provide you with an objective -perspective.
What is a Whistleblower?
•Someone who exposes unethical or illegal wrongdoing within companies by reporting it internally to superiors or externally to the media, government authorities, or specialized attorneys. •Current or past employees (Insider) •Outside individuals who are familiar with the unlawful conduct •Not required to be a U.S. citizens
Behavior Problems•Misconduct
•any felony arrest or indictment •any arrest for driving while impaired or driving under the influence •any arrest or indictment for the possession, use, or sale of any controlled substance.
NC Nursing Practice Act
•§ 90-171.47. Reports: immunity from suit. •Any person who has reasonable cause to suspect misconduct or incapacity of a licensee or who has reasonable cause to suspect that any person is in violation of this Article, including those actions specified in G.S. 90-171.37, G.S. 90-171.43, and G.S. 90-171.44, shall report the relevant facts to the Board. Upon receipt of such charge or upon its own initiative, the Board may give notice of an administrative hearing or may, after diligent investigation, dismiss unfounded charges. Any person making a report pursuant to this section shall be immune from any criminal prosecution or civil liability resulting therefrom unless such person knew the report was false or acted in reckless disregard of whether the report was false. (1981, c. 360, s. 1; 1991, c. 643, s. 8; 1993, c. 198, s. 11; 2019-180, s. 14.)