information. Although there are many components to HIPAA, key components of the Privacy Rule are that direct treatment providers must make a good faith effort to obtain written acknowledgment of the notice of privacy rights and practices from patients. In addition, health-care providers must disclose protected health information to patients requesting their own information or when oversight agencies request the data. Reasonable efforts must be taken, however, to limit the disclosure of personal health information to the minimum information necessary to complete the transaction. There are situations, however, when limiting the information is not required. For example, a minimum of information is not required for treatment purposes, since it is clearly better to have too much information than too little. The HIPAA Privacy Rule and Common Rule also require that individuals participating in research studies should be assured privacy, particularly regarding personal health information.
The Privacy Rule attempts to balance the need for the protection of personal health information with the need for disclosure of that information for patient care.
Because of the complexity of the HIPAA regulations, it is not expected that a nursing manager would be responsible for compliance alone. Instead, it is most important that the manager work with the administrative team to develop compliance procedures. For example, managers must ensure that unauthorized people do not have access to patient charts or medical records and that unauthorized people are not allowed to observe procedures.
It is equally important that managers remain cognizant of ongoing changes to the guidelines and are aware of how rules governing these issues may differ in the state in which they are employed. Some provisions of the Privacy Rules mention “reasonable efforts”
toward achieving compliance, but being reasonable is provision specific. The American Recovery and Reinvestment Act (ARRA) applies several of HIPAA’s security and privacy requirements to business associates and changes data restrictions, disclosure, and reporting requirements.
Clearly, managers should be taught how to deal sensitively and appropriately with an increasingly diverse workforce. Enhancing self-awareness and staff awareness of personal cultural biases, developing a comprehensive cultural diversity program, and role modeling cultural sensitivity are some of the ways that managers can effectively avoid many legal problems associated with discriminatory issues. However, it is hoped that future goals for the manager would go beyond compliance with Title VII and move toward understanding of and respect for other cultures.
pROFESSIONAL VERSUS INSTITUTIONAL LICENSURE
In general, a license is a legal document that permits a person to offer special skills and knowledge to the public in a particular jurisdiction when such practice would otherwise be unlawful. Licensure establishes standards for entry into practice, defines a scope of practice, and allows for disciplinary action. Currently, licensing for nurses is a responsibility of State Boards of Nursing or State Boards of Nurse Examiners, which also provide discipline as necessary. The manager, however, is responsible for monitoring that all licensed subordinates have a valid, appropriate, and current license to practice.
Professional licensure is a privilege and not a right.
All nurses must safeguard the privilege of licensure by knowing the standards of care applicable to their work setting. Deviation from that standard should be undertaken only when nurses are prepared to accept the consequences of their actions, in terms of both liability and loss of licensure.
Nurses who violate specific norms of conduct, such as securing a license by fraud, performing specific actions prohibited by the Nurse Practice Act, exhibiting unprofessional or illegal conduct, performing malpractice, and abusing alcohol or drugs, may have their licenses suspended or revoked by the licensing boards in all states. Frequent causes of license revocation are shown in Display 5.4.
l professional negligence
l practicing medicine or nursing without a license
l Obtaining a nursing license by fraud or allowing others to use your license
l Felony conviction for any offense substantially related to the function or duties of an rN
l participating professionally in criminal abortions
l Not reporting substandard medical or nursing care
l providing patient care while under the influence of drugs or alcohol
l Giving narcotic drugs without an order
l Falsely holding oneself out to the public or to any health-care practitioner as a “nurse practitioner”
DISpLAy 5.4 Common Causes of Professional Nursing License Suspension or Revocation
Typically, suspension and revocation proceedings are administrative. Following a complaint, the Board of Nursing completes an investigation. Most of these investigations reveal no grounds for discipline. If the investigation supports the need for discipline, nurses are notified of the charges and are allowed to prepare a defense. At the hearing, which is very similar to a trial, the nurse is allowed to present evidence. Based on the evidence, an administrative law judge makes a recommendation to the State Board of Nursing,
which makes the final decision. The entire process, from complaint to final decision, may take up to 2 years.
Some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Proponents for this move believe that institutional licensure would provide more effective use of personnel and greater flexibility.
Most professional nursing organizations oppose this move strongly because they believe that it has the potential for diluting the quality of nursing care.
An alternative to institutional licensure has been the development of certification programs by the American Nurses Association (ANA). By passing specifically prepared written examinations, nurses are able to qualify for certification in most nurse practice areas. This voluntary testing program represents professional organizational certification.
In addition to ANA certification, other specialties, such as cardiac care, offer their own certification examinations. Many nursing leaders today strongly advocate professional certification as a means of enhancing the profession. However, certification is really only helpful in determining a nurse’s continued competence if that nurse is functioning in the areas of his or her certified competence (Huston, 2014c).
INTEGRATING LEADERSHIp ROLES AND MANAGEMENT FUNCTIONS IN LEGAL AND LEGISLATIVE ISSUES
Legislative and legal controls for nursing practice have been established to clarify the boundaries of nursing practice and to protect clients. The leader uses established legal guidelines to role model nursing practice that meets or exceeds accepted standards of care.
Leaders also are role models in their efforts to expand expertise in their field and to achieve specialty certification. Perhaps the most important leadership roles in law and legislation are those of vision, risk taking, and energy. The leader is active in professional organizations and groups that define what nursing is and what it should be in the future. This is an internalized responsibility that must be adopted by many more nurses if the profession is to be a recognized and vital force in the political arena.
Management functions in legal and legislative issues are more directive. Managers are responsible for seeing that their practice and the practice of their subordinates are in accord with current legal guidelines. This requires that managers have a working knowledge of current laws and legal doctrines that affect nursing practice. Because laws are not static, this is an active and ongoing function. The manager has a legal obligation to uphold the laws, rules, and regulations affecting the organization, the patient, and nursing practice.
Managers have a responsibility to be fair and nondiscriminatory in dealing with all members of the workforce, including those whose culture differs from their own. The effective leader goes beyond merely preventing discriminatory charges and instead strives to develop sensitivity to the needs of a culturally diverse staff.
The integrated leader-manager reduces the personal risk of legal liability by creating an environment that prioritizes patient needs and welfare. In addition, caring, respect, and honesty as part of nurse–patient relationships are emphasized. If these functions and roles are truly integrated, the risks of patient harm and nursing liability are greatly reduced.
ADDITIONAL LEARNING EXERCISES AND AppLICATIONS
KEY CONCEPTS
l sources of law include constitutions, statutes, administrative agencies, and court decisions.
l the burden of proof required to be found guilty and the punishment for the crime varies significantly between criminal, civil, and administrative courts.
l Nurse practice acts define and limit the practice of nursing in each state.
l professional organizations generally espouse standards of care that are higher than those required by law. these voluntary controls often are forerunners of legal controls.
l Legal doctrines such as stare decisis and res judicata frequently guide courts in their decision making.
l currently, licensing for nurses is a responsibility of state Boards of Nursing or state Boards of Nurse examiners. these state boards also provide discipline as necessary.
l some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Many professional nursing organizations oppose this move.
l Malpractice or professional negligence is the failure of a person with professional training to act in a reasonable and prudent manner. Five components must be present for an individual to be found guilty of malpractice.
l employers of nurses can now be held liable for an employee’s acts under the concept of vicarious liability.
l each person, however, is liable for his or her own tortuous conduct.
l Managers are not automatically held liable for all acts of negligence on the part of those they supervise, but they may be held liable if they were negligent in supervising those employees at the time that they committed the negligent acts.
l While professional negligence is considered to be an unintentional tort, assault, battery, false imprisonment, invasion of privacy, defamation, and slander are intentional torts.
l consent can be informed, implied, or expressed. Nurses need to understand the differences between these types of consents and use the appropriate one.
l although the patient owns the information in a medical record, the actual record belongs to the facility that originally made it and is storing it.
l it has been shown that despite good technical competence, nurses who have difficulty establishing positive interpersonal relationships with clients and their families are at greater risk for being sued.
l each nurse should be aware of how laws such as Good samaritan immunity or legal access to incident reports are implemented in the state in which they live.
l New legislation pertaining to confidentiality (hipaa) and patient rights (e.g., psda) continues to shape nurse–client interactions in the health-care system.