126 UNIT 2 Current Issues in Health Care guidance to nurses who often are in the best position to discuss these issues with the patient (e.g., while com- pleting a comprehensive admission assessment). (Legal considerations related to living wills, durable power of attorney, and DNR orders are discussed in “The Law and Patient Rights,” the last section of this chapter.) Health Insurance Portability and Accountability Act of 1996 (Public Law No. 104-191)
The intent of this law is to ensure confidentiality of the patient’s health information. Legitimate concerns regarding the uses of and release of medical informa- tion, particularly to private entities, such as insurance companies, led to the passage of this law. The intro- duction of electronic medical records has provided additional impetus for introduction of this legislation.
The statute sets guidelines for maintaining the privacy of health data. It provides explicit guidelines for nurses who are in a position to release health information. To maintain confidentiality of the patient’s health infor- mation, all nurses must have a basic understanding of this federal law. Nurses should also take note that the HIPAA confers whistle-blower protection for individ- uals who report in good faith any illegal disclosure of patients’ health. In 2005 a federal statute, The Patient Safety and Quality Improvement Act, was enacted to allow certain disclosures of patient safety data. The law permits a provider to disclose nonidentifiable patient data to a qualified patient safety organization (PSO) for the purpose of analyzing medical errors. The law pro- hibits an accreditation body, such as TJC, from taking any action against a provider who reports patient safety data to an approved PSO (Public Law No. 109-41).
With the continued increase in the number of nurses using social media such as blogs, social networking sites, video sites, and online chat rooms and forums, a patient’s right to privacy is threatened. The National Council of State Boards of Nursing (NCSBN) has pub- lished a brochure, “A nurse’s guide to the use of social media” (NCSBN, 2011a). The publication reviews the benefits and risks of using social media in the workplace or bringing workplace issues to social media sites during free time. The release of private health data, either inad- vertent or intentional, is a violation of the HIPAA and is punishable by significant fines and a term of impris- onment. It may also result in suspension or revoca- tion of the nurse’s license. Civil actions may arise from a violation of patient confidentiality, alleging failure
to maintain security of protected patient health data, unprofessional conduct, and violation of hospital poli- cies and procedures that restrict access to patient infor- mation on a “need to know” basis. Posting photographs or videotapes of patients, or even ostensibly unidentifi- able body parts is expressly forbidden and also violates the American Nurses Association Code of Ethics for Nurses (2001, reaffirmed 2010). Discussing conflicts with managers or coworkers on social networking sites or posting unauthorized photos or videos of profes- sional colleagues opens the nurse to claims of invasion of privacy, slander, intentional infliction of harm, and emotional distress, among other things. Further risks to one’s livelihood and future employment as a nurse are presented when the nurse publicly airs dissatisfaction with his or her employer or discusses problems at work that make the employer vulnerable to ridicule or loss of reputation in the community or larger health care arena.
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For further exploration, excerpts from three separate state NPAs can be found online (http://evolve.elsevier.
com/Cherry/) to illustrate how an NPA defines the scope of practice for nurses.
Surprisingly, many nurses are not even aware that the NPA is a law, and they unknowingly violate aspects of this statute (NCSBN, 2011b). They are not familiar with the administrative rules and regulations enacted by the licensing board. This is an unfortunate lapse because these administrative rules and regulations answer crucial questions that nurses have about the day-to-day aspects of practice and unusual occurrences. For example, the increasing complexity of health care requires effective communication, collaboration, and planning of care among many licensed health team members. Rules pro- mulgated by the Ohio Board of Nursing Section 4723.03 related to the competent practice as an RN direct the nurse in appropriate reporting and consultation.
“A registered nurse shall in a timely manner:
• Implement any order for a client unless the registered nurse believes or should have reason to believe the order is:
1) Inaccurate
2) Not properly authorized 3) Not current or valid
4) Harmful, or potentially harmful to a client 5) Contraindicated by other documented informa-
tion; and
• Clarify any order for a client when the registered nurse believes or should have reason to believe the order is: [a through e as delineated in (1)]”
Ohio Administrative Code, Section 4723-4-03, E, 2009 Based on this, an RN in Ohio who does not clarify a questionable order before administering a medication or carrying out the prescribed action is in violation of the law.
Each nurse should own a current copy of the NPA and the licensing board’s administrative rules and reg- ulations. The nurse also must know how to access the licensing board online and by telephone in order to clarify issues related to nursing practice. The dramatic changes occurring in health care often lead to uncer- tainty among nurses about which functions constitute the exclusive practice of registered nursing and which patient care tasks may be lawfully delegated to a licensed practical nurse/licensed vocational nurse (LPN/LVN) or unlicensed assistive personnel. The NPA and licens- ing board rules and regulations provide essential infor- mation that clarifies these important questions. In 2008, the Texas Board of Nursing approved a new rule
requiring all nurses to take and pass a Nursing Jurispru- dence Exam prior to initial licensure. The exam tests knowledge regarding nursing board statutes, rules, posi- tion statements, disciplinary action, and other resource documents accessible on the Texas board website (http:
//bon.state.tx.us/index.html).
Nurses may also have questions and concerns regard- ing the legal aspects of floating to unfamiliar units. An NPA provides information regarding the scope of prac- tice, required competencies, and the responsibilities of a nurse who accepts an assignment or agrees to carry out any task or activity in the clinical setting. The NPA broadly defines the practice of registered nursing in accordance with nursing’s rapidly evolving functions. In recent years, with the expansion of basic nursing func- tions and the development of advanced nursing practice, many states have revised their NPAs. Licensing boards also have been authorized in some states to provide guide- lines for the development of “standardized procedures.”
Standardized procedures are a legal means by which RNs may expand their practice into areas traditionally consid- ered to be within the realm of medicine. The standardized procedure actually is developed within the facility where the expanded nursing functions have been approved. It is developed in collaboration with nursing, medicine, and administration. An example of a standardized procedure is a written protocol authorizing a nurse to implement a peripherally inserted venous catheter for patients in the neonatal intensive care unit. The NCSBN provides addi- tional online resources for nurses covering diverse topics, including licensure and regulation (NCSBN, 2011b).
Violations of an NPA
State legislatures have given licensing boards the author- ity to hear and decide administrative cases against nurses when there is an alleged violation of an NPA or the nursing board’s rules and regulations. Nurses who violate the NPA or board’s administrative rules and reg- ulations are subject to disciplinary action by the board.
Research indicates an increase in the number of con- sumer complaints to licensing boards related to nursing misconduct, and disciplinary actions more than dou- bled from 1996 to 2006 (Kenward, 2008). Table 8-1 pro- vides a synopsis of the licensing board procedure when a complaint is made about a nurse. Courts have con- sistently affirmed board of nursing decisions to restrict, suspend, or revoke the nurse’s license when nurses have challenged the decision.
128 UNIT 2 Current Issues in Health Care
TABLE 8-1 LICENSING BOARD PROCEDURE WHEN A COMPLAINT IS FILED
ACTION CONSEQUENCE
Complaint is made (initial complaint may be lodged by a telephone call or a letter mailed to the licensing board) by:
• Consumer (patient)
• Family member
• Nurse or nurse manager or employer
• Professional nursing organization
• State board of nursing
• Federal or state authority (i.e., CMS
or Department of Health and Human Services)
Sworn complaints must be filed
Licensing board reviews complaint:
• Examines evidence
• Reviews reports
Insufficient evidence—no action Administrative review scheduled
• Nurse notified
Board makes determination Nurse summoned
• Rules of proceeding explained
• Witnesses called to testify
• Further evidence examined
Licensing board makes decision Nurse exonerated
Nurse guilty of violating the NPA
Board takes disciplinary action Possible actions
• Board issues formal reprimand
• Fines levied against nurse
• Nurse placed on probation
• License suspended or revoked
• License not renewed Nurse may challenge licensing board’s actions Nurse must file appeal in court Court reviews case (court action is dependent on jurisdiction)
• Reviews conduct of proceedings
• Review’s board’s decision
Licensing board ruling is reversed
Licensing board can appeal ruling Court reviews case
Court renders a decision Licensing board ruling is upheld
OR OR
Court renders a decision Licensing board ruling is overturned
Licensing board can appeal to a higher court
Case scheduled for trial Licensing board ruling is upheld
OR
Licensing board ruling is reversed CMS, Centers for Medicare & Medicaid Services; NPA, nurse practice act.
Box 8-2 presents the more common grounds for disciplinary action by state boards of nursing. Penalties that licensing boards may impose for violations of an NPA include the following:
• Issuing a formal reprimand • Establishing a period of probation • Levying fines
• Limiting, suspending, or revoking a nurse’s license
An estimated 10% to 15% of RNs in the United States are chemically dependent (NCSBN, 2011c). The majority of disciplinary actions by licensing boards are related to misconduct resulting from chemical impair- ment, including the misappropriation of drugs for personal use and the sale of drugs and drug parapher- nalia to support the nurse’s addiction. When a nurse’s license is limited or suspended because of problems
129 CHAPTER 8 Legal Issues in Nursing and Health Care
related to chemical impairment, the ability to practice in the future often is predicated on successful comple- tion of a drug rehabilitation program and evidence of abstinence. An increasing number of state licens- ing boards have established programs to guide nurses through the process of rehabilitation to re-establish licensure.