LEGAL ISSUES AND THE SCHOOL NURSE

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LEGAL ISSUES
AND THE SCHOOL NURSE

• Nancy Roper Willson RN, JD, MSN, MA
• Attorney at Law

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Types/Sources of Law

• Statutory
• TNPA
• Administrative
• BNE Rules
• and Regulations
• Common Law
• Court Cases

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Two Legal Pitfalls

• Malpractice-Failing to do what a reasonable and
  prudent nurse would do in a particular
  circumstance or Doing whatetc
• Peer Review-(Defined in NPA as variety of
  activities)-Evaluation of nursing services,
  qualifications of a nurse, quality of pt. Care
  rendered by a nurse, merits of a complaint re a
  nurse/nursing care, determination or
  recommendation

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PEER REVIEW
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Texas Nursing Practice Act

• Original Texas NPA passed 3-28-1909
• Part of the Occupations Code
• Chapter 301 TNPA (RNs and LVNs)
• Chapter 302 LVN Act (Deleted)
• Chapter 303 Peer Review

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Mission of Licensing Board
Protect and promote the welfare of the citizens
of the state
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Composition of the BNE-2/1/04

• Members appointed by the Governor with advice and
  consent of senate (13 Members)
• 1 APN 2 RNs 3 LVNs 1Nurse Faculty LVN Program
  1 NF ADN 1 NF BSN 4 Public Members
• Executive Director-
• Katherine Thomas
• Staff

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Peer Review
Enacted in 1987 as part of the Professional
Nursing Quality Assurance Act Organizations with
10 or more RNs required to have peer
review procedure
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Peer Review

• Mandatory reporting
• in Texas

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Decision Tree

• Did the Nurse violate the NPA?
• If yes, was it a Minor Incident?
• Do not need to report..OR
• If yes, was it a systems error?
• Variable results for the Nurse
• 2003-217.19 (7) 301.457 303.011

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Peer Review, Contd
Confidentiality of process Anonymous
reporting Immunity from liability
(retaliation by the reported nurse) if in
good faith
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Rule 217.11

• Allegations based on this Rule
• Standards of Conduct for LVN/RN/APN
• Lists examples of conduct required in ANY
  practice setting, such as legal knowledge,
  documentation, delegation, accepting assignments,
  etc.

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Minor Incident Rule 217.16

• Revised May 2006-
• Need not be reported unless
• 5/year was 3/year
• 4 criteriaNOT minor-1) significant risk of harm
  2)lacks conscientious approach or accountability
  3)lacks easily remediated knowledge
  competencies 4) pattern of multiple minor
  incidents

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217.16 Continued

• Informal Review of minor incidents can be by
  workgroup of the PRC
• Consider 1 Incident result of factors beyond
  nurses control? 2 Med Error result of failure
  of clinical judgment or extraneous factors?
• Never Minor1 death/serious harm 2criminal
  conduct (310.4535) 3 serious viol. Unprof.
  Conduct Rule (fraud, theft, pt. abuse)

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2007 Texas Legislative Session

• 2 Bills sponsored by TNA that will affect TNPA
• HB 2158 SB 993
• HB 1362 SB

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HB 2158 SB 993

• Cultures of Safety Report to BNE if
• (A)  violates this chapter or a board rule and
  contributed to the death or serious injury of a
  patient                   
• (B)  causes a person to suspect that the nurse's
  practice is impaired by chemical dependency or
  drug or alcohol abuse                  
• (C)  constitutes abuse, exploitation, fraud, or a
  violation of professional boundaries
  or                   
• (D)  indicates that the nurse lacks knowledge,
  skill, judgment, or conscientiousness to such an
  extent that the nurse's continued practice of
  nursing could reasonably be expected to pose a
  risk of harm to a patient or another person,
  regardless of whether the conduct consists of a
  single incident or a pattern of behavior

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HB 2158 SB 993

• Patient Safety Committee will report findings to
  the Nursing Peer Review Committee, if deficiency
  in care was due to a factor beyond the nurses
  control or will receive a report from the BNE

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HB 2158 SB 993

• PSC and PRC will share info if established by
  same entity
• Communication from PSC will not be subject to
  discovery

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HB 1362 SB 761

• Patient Advocacy Bill
• Consolidates and restates in a clearer manner the
  patient advocacy and whistleblower protections
  provided nurses when raising patient concerns

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HB 1362 SB 761

• Changes include increasing damages nurse may
  receive from 1,000 to 5,000.
• Re-affirms that a nurse may refuse assignment
  she/he believes to be in violation of a BNE Rule
  or TNPA

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Minimum Due Process Rule 217.19 Incident Based PR
Should follow requirements for minimum due
process Written Notice Time Frame/Limitations Conf
identiality Opportunity to View
Records Hearing/Parity of Representation Report
to the BNE is Advisory
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Malpractice vs Peer Review
Malpractice-Actual injury, Money for
compensation, Courts-judges juries, Statute of
limitations Peer Review-Pt. exposed to
unnecessary risk of harm, License restrictions,
PRCs and the BNE, No Statute of Limitations
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Typical Investigation Process

• Complaint is received by
• BNE through one
• of several means
• BNE conducts
• preliminary investigation
• BNE notifies RN that complaint has been filed,
  nature of complaint, and invites RN to show
  compliance

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Typical Investigation Process

• If RN/LVN has not already done so, advisable to
  hire an attorney

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Typical Investigation Process

• Informal conference is held at the BNE to attempt
  to resolve (settle) the matter
• If an agreement is reached, an Agreed Order will
  be drafted by the
• BNE enforcement
• staff for signature of the
• RN/LVN and RNs/LVNs attorney

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Typical Investigation Process

• The Order is then presented to the full Board for
  ratification and becomes effective on the day of
  ratification
• The RN/LVN then functions under the stipulations
  in the
• Order for the time
• designated

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Typical Investigation Process

• The fact of the discipline remains on the RNs or
  LVNs record and is public information

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Typical Investigation Process

• If an agreement cannot be reached at the informal
  level and the BNE has probable cause to believe
  the RN/LVN violated the NPA or RRs, Board will
  commence formal proceedings by filing formal
  charges (this is public information)

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Typical Investigation Process

• The Board will set the matter for formal hearing
  before an Administrative Law Judge at the State
  Office of Administrative Hearings

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Typical Investigation Process

• Board has the burden of proof that RN/LVN
  violated NPA, RR, BNE Order
• ALJ renders a decision
• which Board accepts or rejects
• If the nurse does not agree with the decision of
  the ALJ/BNE, then he/she can file a case in State
  Court (very few do this)

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Categories of Discipline

• Remedial Education
• Warning
• Reprimand
• Suspension
• Revocation
• Can Surrender at any time

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Types of Stipulations

• Nursing Jurisprudence Course
• Other Courses (Med, Physical Assess.)
• Indirect or Direct Supervision
• Practice Site Restrictions
• Employer Notification
• Employer Reports

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Discipline and Multi-state Licensure

• Multi-state privileges are usually suspended
  during the time period of the disciplinary order
• Home State Disciplines

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National Data Bank

• The names of all disciplined nurses are sent to
  the National Practitioners
• Data Bank and the
• information is
• available to all
• nursing licensing boards

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Protections
Know the Texas Nursing Practice Act, BNEs Rules
and Regs. and specific laws Professional
Competency Documentation Professional Liability
Insurance (Lawyer, Damages, Bond for
Appeal) Knowledge of Safe Harbor
Protections Knowledge of Delegation Rule 224/225
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Protections
Professional Competency
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Protections
Professional Liability Insurance
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Professional Liability Insurance

• John Doe, Plaintiff
• vs
• Medical Center and
• Nurse A, Nurse B, Nurse C, and
• Doctor 1, Doctor 2, Doctor 3

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Important to Remember

• Many Professional Liability Policies will
  re-imburse the nurse for attorneys fees and
  personal expenses for defense before the
  licensing board up to a specified amount.
• (Be sure to check the policy)

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Protections
Safe Harbor
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Protections
Delegation
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School Nurses Dilemma

• Education Code
• Vs
• Texas Nursing Practice Act

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School Nursing and Specific Issues

• Delegation
• Preserving Confidentiality
• Parental Refusal to Follow-up

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DELEGATION

• RULE 224 and RULE 225

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Rule 224

• Delegation of Nursing Tasks by Registered
  Professional Nurses to Unlicensed Personnel for
  Clients with Acute Conditions or in Acute Care
  Environments

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Rule 225

• Delegation of Nursing Tasks by Registered
  Professional Nurses to Unlicensed Personnel and
  Tasks not Requiring Delegation in Independent
• Living Environments for
• Clients with Stable and
• Predictable Conditions

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Delegation Defined

• Authorizing another person
• to act as ones representative
• Authorizing an unlicensed
• assistive person (UAP) to
• provide nursing services while
• RN retains accountability for the outcome

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Definition, Cont.

• Decision to delegate belongs to the RN-
• Cannot be forced by facility policy or job
  description
• Made after careful analysis
• RNs do not delegate to LVNs
• RNs make assignments to LVNs
• (217.11S)
• LVNs do not have delegatory authority

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Additional Points to Remember

• If RN addresses and proves criteria
• met, then accountability met
• Does not apply to civil liability (ex.
  Malpractice) i.e. properly following this Rule
  is not a defense for a malpractice claim

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General Criteria 224.6

• Applies to all situations
• Directs RN through decision making process
• Criteria include1)assess clients nursing
  care needs 2)within scope of sound professional
  nursing judgment3) UAP can safely perform
  without jeopardizing 4)task does not require
  nursing judgment or intervention

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Criteria, Cont.

• UAP identified -individually or by type/
  classification
• Personally instruct UAP or verify competency
• Adequate supervision
• Periodically evaluate delegation

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Supervision 224.7

• Level of supervision depends on condition of
  client, competency of UAP, nature of task and
  availability of RN to UAP
• Delegating RN or equally qualified RN must be
  available to UAP directly or by telecommunication
• RN must be readily available with clients with
  changing conditions

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Rule 225 Definitions

• Activities of Daily Living (ADLs)
• Health Maintenance Tasks (HMAs)
• Nursing Tasks

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225 Gatekeeping Criteria

• Independent Living Environment
• Client/CRA willing/able to participate in
  decisions
• Task related to stable and predictable health
  care condition

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225.(b) RN Assessment of Client

• 6 Criteria
• 1-Ability of Client or clients CRA to
  participate

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6 Criteria

• 2-Adequacy and reliability of Support Systems

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6 Criteria

• 3-Degree of stability and predictability

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6 Criteria

• 4-Knowledge Base re Clients health status
  (Client or CRA if Client under 16 yo or
  incompetent)

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6 Criteria

• 5-Ability to communicate to UAP

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6 Criteria

• 6-Frequency of Reassessment

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ADLS Not Requiring Delegation

• Limited to tasks in defn
• Not require RN delegation when task is related to
  functional disability
• Task can be performed by any UAP w/o RN
  supervision

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HMAS Not Requiring Delegation

• Limited to tasks in defn
• More complicated or invasive than ADLS
• Require additional assessment criteria

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HMA Supervision

• Client would perform but for functional
  disability
• HMA can be directed by C or CRA w/o RN
  supervision
• C or CRA has agreed in writing to direct UAP

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HMA Supervision, Continued

• C willing/able to train UAP OR
• CRA trains UAP and is present when task is
  performed or
• Observes UAP performance of task X1, then is
  available (by phone, etc)

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Medication Administration

• Assistance w/ medication administration
• Emphasis on functional disability
• Routine O2
• InsulinSQ, Nasal, Pump
• Use of pill box

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Texas School Health Guidelines

• Medication Administration
• In School
• Off School Grounds
• Herbal/Dietary
• Emergency
• Psychotropic
• Diabetes
• Oxygen

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School Nursing

• Delegation
• Preserving Confidentiality
• Parental Refusal to Follow-up

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School Nursing

• Delegation
• Preserving Confidentiality
• Parental Refusal to Follow-up

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Parental Refusal to Follow Up or other parental
issue

• Advocate, Advocate, Advocate

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Parental Refusal to Follow Up or other parental
issue

• Document, Document, Document

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Board of Nurse Examiners

• Rule 217.11 (D) accurately and completely report
  and document i) client status ii) nursing care
  iii) orders iv) admin. of meds and treatments
  v) client
• responses and vi) contact
• w/ other HC team re
• significant events of client
• status

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Board of Nurse Examiners 217.11, continued

• Participate in client education
• Orientation competency
• Notify supervisor
• Mandatory reporting
• Make referrals/consults
• Continuing competence
• Supervise care

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Purposes of the Medical Record

• Provides a complete and accurate documentary of
  the care and treatment that a patient receives

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Purposes

• Serves as a means of communication between all
  members of the health care team

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Purposes

• May serve as evidence in a legal proceeding

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Documentation Maxims

• All entries should be complete, accurate and
  timely

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Maxim

• Chart what you see, feel, smell, etc.
• Do not chart personal opinions

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Maxims

• Do not use vague or immeasurable phrases

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Maxims

• Do not criticize other
• staff

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Maxims

• Do not chart in the patient record re Incident
  Report/ Safe Harbor

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Maxims

• Use only accurate terms and accepted abbreviations

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Maxims

• If your charting is incomplete, sloppy and
  inaccurate, a jury may decide your nursing care
  was the same

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Maxim

• Never falsify a record

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