Dr' Elaine Nichols, EdD, RN

1
Legally Defensible Documentation of Student
Performance
Dr. Elaine Nichols, EdD, RN Associate Dean,
Academic Affairs College of Nursing Mr. Michael
Sermersheim, JD Associate VP Deputy General
Counsel
2
Presentation Objectives

• Examine selected issues of ethical and legal
  responsibility for faculty
• Demonstrate methods to document student
  performance
• Discuss basic design of clinical evaluation tools
• Describe how and what to document in students
  record
• Describe how and what to communicate to other
  faculty

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Clinical Evaluation Form

• One standard format for clinical evaluation tools
  used throughout the program
• Definitions for categories
• Describes specific behaviors and competencies
• Objectives/Criteria are clear and attainable
• All faculty must follow the rating system
• If two-dimensional, no room for added categories

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Clinical Evaluation Form

• Reflects midpoint assessment and final evaluation
• Completed by both student and faculty member
• Allows room for written comments by both faculty
  and student
• Provides for signature and date lines
• No mixing of other clinical assignments into the
  clinical evaluation tool

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Counseling of Students

• Contractual relationship between program and
  student
• Expectations must be clear from beginning
• Bulletins, handbooks, course syllabi, other
  course documents
• Tie student performance and behavior to policies
• Explain what duty was not performed or what
  policy was violated

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At the Beginning of a Clinical Course

• Clearly identify and state the course
  requirements and the process by which the
  clinical grade will be determined
• Clearly define clinical objectives
• Explain specific behaviors indicated by each
  objective and the level of competence required to
  satisfactorily meet the objective

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At the Beginningcont

• State the consequences of failing to complete the
  course satisfactorily
• Explain the sources for determination of the
  grade
• Requirements for the course should not be changed
  once the course has begun
• Faculty should thoroughly review course materials
  with the students and encourage discussion for
  clarification

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During the Clinical Course

• Keep adequate documentation on each student
• Anecdotal notes and written record on all
  learning experiences, and written reports on
  conferences
• keep daily worksheets with assignments (patients,
  medications, treatments)
• describe both positive and negative examples of
  students behavior
• written in objective terms the facts
• Consistent and constant communication with
  students is important
• When students are not doing well, information
  should be communicated with administration

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At the End of the Course

• Prepare the semesters evaluation facts
  presented
• Avoid general conclusion statements
• Student and faculty discuss the final evaluation
• Completed, signed evaluation placed in student
  record
• Anecdotal information kept by faculty
• Failing outcomes present student with
  consequences of the failure, options, refer to
  next in line of communication, and document

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When Students are Not Doing Well

• Coaching
• Counseling
• Frequent assessments
• Documentation
• Conferences
• Contract
• Faculty supporting faculty
• Faculty informing administration

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Contracts

• Warning from faculty
• Identified incidents of concern
• Inform that clinical grade is currently
  unsatisfactory
• Outline all objectives that need to be met in
  remaining weeks of the course
• State level of competency expected
• Signed and dated by faculty and student
• Student given copy

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Failure to Evaluate

• Faculty who fail to evaluate a students
  unsatisfactory performance accurately are
• Guilty of misleading the student
• Potentially jeopardizing client care
• Placing peers in a difficult situation

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Policies and Procedures in Clinical Evaluation

• Faculty as a group need to decide
• How many incidents warrant failure?
• What types of incidents warrant failure?
• How much improvement warrants passing?
• How many performance deficits permitted because
  of anxiety?
• All policies and procedures must be agreed upon,
  understood, and implemented the same way by all
  faculty

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Arbitrary and Capricious Action

• Plaintiff must show there is no rational basis
  for University decision, or decision motivated by
  bad faith or ill will
• Program may establish standards of student
  conduct and scholastic attainments higher than
  the average
• Program must apply established standards fairly
  and equitably

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Critical Factors

• When judges review an academic decision, they
  tend to show great respect for the facultys
  professional judgment
• To override facultys judgment, decision must be
  a substantial departure from accepted academic
  norms as to demonstrate that the person or
  committee responsible did not actually exercise
  professional judgment

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Faculty Responsibilities

• Complete forms regarding student performance from
  beginning to end
• Apply policies evenly to all, e.g. everyone has
  obligation to perform expected clinical
  functions no exceptions
• Document academic reasons for any departures from
  requirements of others who engage in what appears
  to be the same conduct as the student
• Explain cause and effect

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Documentation of Important Conversations with
Student

• Focus on performance
• Continue communication with student
• Be specific record only essential facts
• Focus on students work, duties, policies do not
  get personal
• Avoid any use of words that may be construed as
  threatening
• Sign and date all documentation, noting any
  witnesses who have seen or heard the event being
  documented

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Communication with Other Faculty

• Be very careful
• FERPA
• Applies to any record (in handwriting, print,
  tape, film, or maintained on any other medium)
  maintained by the university, an employee of the
  university, or an agent of the university, which
  is directly related to a student
• Disclosures to other university officials made
  only when there exists a legitimate educational
  interest

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Legitimate Educational Interest

• Performing a task that is specified in his/her
  position description or by a contract agreement
• Performing a task related to the students
  education
• Performing a task related to the discipline of
  the student
• Providing a service or benefit relating to the
  student or students family, i.e. health care,
  counseling, job placement, financial aid