Law & Order Legally Protecting the

Student, Nurse and the School District

Presented to: 2014 Annual TSNO conference

attendeesNovember 14, 2014

Yvonne M. Acosta RN, MSN, JDAttorney at Law

School of Nursing, 500 W. University El Paso, Texas 79968

Introduction:

The purpose of today’s presentation will be to explore the realm of school health, to describe the multifaceted role of the school nurse, and to discuss the legal issues that many of you face in your daily practice.

Topics of discussion: Scope of Practice, standards of practice and legal pitfalls/ethical challenges.

Additionally, an overview of Federal Laws which impact your practice will be discussed.

Time permitting, we will also explore case studies, administrative proceedings and legal strategies to minimize liability.

Role of the School Nurse

• Today, the role of the school nurse primarily involves the provision of health services, health education, and health promotion.

• The school nurse is expected to engage in evidence-based practice and research, program management, promotion of environmental health, collaboration, all while demonstrating effective leadership qualities and promoting active communication. (Based on ANA School Nursing: Scope and Standards of Practice 2011)

LAWS WHICH IMPACT YOUR PRACTICE

• Organization and administration of school health is decentralized (i.e.., the responsibility of the local and state governments).

• However, there are state and federal laws such as the Nurse Practice Act, FERPA, IDEA, ADA which govern your practice and impact on the overall statewide administration of services.

• School health nurses are preferred to possess the academic credentials of a baccalaureate degree (at a minimum).

• National certification examinations are also available in this arena.

State/Local Regulations • Nurse Practice Act (NPA) outlines the

standards nurses must uphold.• Additionally, the Texas Association of

School Nurses now (TSNO) sets forth standards specific to your arena of practice.

• School and District Policies must

also be adhered to.

Legal challenges• Legal challenges center on the delegation

of tasks, the maintenance of appropriate medical records (documentation) and the issue of confidentiality.

• While these issues are not unheard of, they come with a myriad of problems which can predispose a nurse to liability.

• Protection of all parties.

Legal Pitfalls in School Nursing

• Documentation Issues are at the forefront• Breach in Confidentiality• HIPAA /FERPA violations• Failure to report incidents/injuries/change

in student health status• Delegation of “undelegable tasks”• Medication errors

Consequences

Nurses can be subject to one or more of the following proceedings should his/her professional actions be questioned:

*Administrative hearing before the District

*Investigation/hearing before the Texas Board of Nursing

*Being named in a lawsuit

Legal Evidence• Documentation IS CRITICAL to protection

of:– School Nurses, Therapists;– Doctors; and– Other school employees

against threats of negligence claimsThe medical record is a snapshot of the care rendered. Therefore, a well documented record is critical to safeguard against lawsuits or threats of same.

“Written Evidence”If it is not documented…..it wasn’t

done– Medical/School Health Records must contain the

following:

• initial assessment/screenings utilizing the Nursing Process, SOAP,PIE or other acceptable methods;

• nursing actions, particularly reports to the doctor;• ongoing assessment as necessary, including the

frequency of same;• variations from the assessment;• accountability information, including forms signed by

parent• notation of care by other disciplines, communications with

doctor, family• health teaching, screenings including content and

patient/student response;• procedures and diagnostic tests, if any;• statements made by the patient; and• Daily log/sign in sheets denoting students seen.

Sources of Documentation Duties and Standards

– Factors that influence documentation include:• federal statutes and regulations;• state regulations and statutes, including licensing statutes

and Nurse Practice Act (NPA);• standards of professional practice (generally for all

healthcare professionals);• District policies and procedures;• ANA

NASN Guidelines for Documentation

*Accreditation and Licensing

*Statistics

*Communication

*Legal Evidence

*Research and Public Health Purposes

*Education- to show effective and efficient management of school health services programs.

Key Objectives in Nursing Documentation

• To show evidence of QUALITY HEALTH CARE

• Advancement of efficient and effective health services programs.

• Creation of a legal record of nursing/medical/healthcare services/treatments/communications provided to patients/students.

How School Health Records are Viewed

Health versus education record?

Health records are those generated by the nurse whereas educational records are generated by the administrative office.

How School Health Records are Viewed (generally)

• There is a presumption that a medical/health record is accurate if THERE IS no evidence of fraud or RECORD tampering.

• Medical/health records that are intact, sequential, and organized supports a presumption of “quality care.”

Murky Waters

• Inconsistencies exist between Federal and State Law with regard to health and education.

• Inconsistencies further exist within school districts over student records and health service policies.

Family Education Rights & Privacy Act (FERPA)

Federal law which mandates confidentiality for all individual students.

This law was established by Congress and is aimed at preserving the integrity of student records in all schools that receive financial assistance.

Record retention policies

• Every school district must have a policy for health records.

• The policy should outline access, storage, maintenance and confidentiality guidelines, record retention and destruction schedules.

• Uniform documentation principles should be implemented to reduce liability

Legal Pitfalls of Improper Documentation

– Faulty record keeping practices;– Absence of information;– Charting before performing an activity;– Missing records, time gaps;– Vague entries;– Late entries;– Improper corrections;– Unauthorized entries;– Use of unauthorized medical abbreviations;– Documenting personal opinions;– For paper charts, writing that is illegible;

Strategies to Avoid the Legal Pitfalls of Documentation

– Number, Date and Sign all entries;– Write legibly/type accurately/spell check;– Use generally accepted standard medical abbreviations;– Document immediately or soon thereafter when caring for

your patients;– Document what you see, hear, feel and smell; – Avoid innuendo;– Avoid use of liquid paper or correction tape (on hard copy

notes);– Avoid use of pencil (on hard copy notes);– Do not chart for others;– Enter appropriate codes, if mandated by the District; and– Follow proper policies and procedures for documentation

How to Avoid the Legal Pitfalls of Documentation (cont)

– Make corrections following appropriate guidelines;– Avoid tampering with records.– Follow your district policies for handling verbal

orders, telephone orders, etc.– Use appropriate punctuation and grammar.– Double check patient information;– Maintain patient privacy.– Avoid derogatory comments on charting systems. – After charting, avoid divulging confidential information

to “others.”– Chart student symptoms, concerns and questions and

include facts relevant to the student’s care.

Additional Do and Don’t tips

Do’s

– Chart in “actual time”;– Address pertinent details within proper data bases in your

records, if electronic methods are used;– View totality of the patient’s (student’s) care, i.e., make sure

that the diagnosis, treatment and disposition are consistent with the history;

– Include your title with all signature entries;– Chart date, time and method of triage or transfer to a facility;– Routine documentation should include a concise and accurate

record of care administered, psychosocial and physical manifestations, incidents, unusual occurrences, abnormal behavior, treatments, I&O, V/S, etc.;

– Document your participation in treatments rendered by physicians or other healthcare professionals and the reaction of the patient following treatment;

– Choose your words with care, review your documentation to be sure that the entries in the record say exactly what you mean.

Additional Do and Don’t tips

Don’t’s

– Avoid generalizations and speculation;– Avoid slant words such as “appears,” “resembles,”

inadvertently,” “unfortunately,” “we mistakenly”, etc.;– Use the medical record as the place to lay blame,

rationalize, or argue your case when an adverse incident occurs;

– Avoid excess verbiage, say what you mean, mean what you say;

– Avoid charting ahead of time; only chart what you have done and student’s/patient’s response to same;

– Avoid editorial comments about how you feel about the student/patient or another member of the healthcare disciplinary team.

Confidentiality Issues in General Practice

• Under the U.S. Constitution, EVERY person has an absolute right to privacy. This fundamental right extends to patient and their families. Every patient is entitled to an exclusive right to privacy and confidentiality. The dissemination of information to those professionals and family members involved in the immediate care of the patient is acceptable. However, IT IS NOT ACCEPTABLE for anyone to forego this right for purposes of engaging in gossip or criticism of the patient. Health care professionals have both a legal and ethical duty to respect and maintain the patient’s (student’s) right to privacy and confidentiality.

Common Breaches in Confidentiality

• Speaking to others not directly involved in the care of the student/patient regarding a student’s/patient’s condition.

• Speaking to a member of the patient’s family without the patient’s consent. Exception in School nursing as most of your students/patients are minors.

• Releasing confidential information to an employer, telephone caller or insurance company without parental consent.

• Leaving confidential patient information such as the patient’s chart, IHP’s, consultation reports in plain view of others.

• Releasing the wrong information to a student and student’s/patient’s family.

Communication between a patient and physician or healthcare provider is generally privileged and cannot be disclosed in a civil proceeding. See Texas Rules of Civil Procedure 509. This privilege states, in part:

“In a civil proceeding: (1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed. (2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are maintained by a physician are confidential and privileged and may not be disclosed.”

General Rule of Confidentiality for Medical Records in litigation:

The rationale behind this privilege is to prevent unnecessary disclosure of highly personal information and to encourage full communication between physicians and their patients. However, the following are exceptions to this privilege:

1. Patient v. Healthcare Provider: If the patient opts to sue his or her own healthcare provider and disclosure of the patient’s medical records is relevant to the claims against or defenses of the healthcare provider; 2. Written Consent: If the patient signs a written consent as

outlined in Texas Rule of Evidence 509 (f) to release privileged information or someone authorized to act on the patient’s behalf submits a written consent to the release of any

privileged information;3. Relevant to Claim or Defense: If the physical, mental, or

emotional condition of a patient is relevant to any proceeding in which any party relies upon the condition as part of the party’s claim or defense, even when the patient is not a party to the litigation. See Texas Rule of Evidence 509 (e) (4) and 510 (d) (1); and

4. Institutional Abuse or Neglect: If the suit involves abuse or neglect of a resident in an “institution,” Health & Safety Code § 242.002 (10). See also Texas Rule of Evidence 509 (e) (7)

5. In addition to the foregoing, Courts generally consider the following provisions for determining whether or not to disclose medical information regarding an individual patient:

a. The medical information sought is not relevant to the subject matter of the pending lawsuit;

b. The medical information will not lead to the discovery of admissible evidence;

c. The information sought is not reasonably related to any claims or injuries asserted in the present lawsuit;

d. The information is not reasonably related to any defenses asserted; and

e. Not reasonably related in time.

Civil Liability can be Imposed for a Breach in Patient Confidentiality

• A breach in confidentiality is considered a tort (civil wrong). It is the sharing of information with others who are not directly involved in the care of the patient.

• Under the Health and Insurance Portability Act (HIPAA), if a patient’s confidentiality is breached, the injured party (patient) may recover damages.

• Bottom Line: Federal and State laws prohibit disclosure to others without the patient or

family’s consent.• Substantial fines are assessed with proven

violations.

Preventing Breaches in Confidentiality

• Strictly adhere to any obligations to maintain student/patient confidentiality.

• Do not discuss student’s /patient’s condition with anyone that is not directly involved with their care.

• Adhere to your agency policies concerning confidentiality with regard to telephone communications, the media, etc.

• Review and adhere to the obligations required to maintain confidentiality.

General Tips for Avoiding Liability

• Maintain prudent documentation and healthcare practices

• Be familiar with policies and procedures re: charting and documentation in your agency

• Establish a good rapport with your students/families

• Write legibly (check your entries for accuracy)• Document only factual information• Write proficiently, use proper grammar and

punctuation• Complete all documents required within the

course of your day• Document as close to the event/occurrence so

that information is not lost or forgotten

General Tips Continued

• Ignorance of the law will never serve as an excuse.

• Maintain proficiency in your arena of practice (attend workshops, continuing education seminars relevant to your field).

• Adhere to NPA, this is the legal yardstick by which your actions are measured.

• Ensure you are acting as a reasonably prudent nurse would in the same or similar circumstances.

Startling Trends

Nurses are no longer immune from criminal and/or civil liability.

Lawsuits and complaints involving nurses are on the rise.

Administrative complaints at the Board of Nursing are also on the rise.

YOU can all certainly do your part to reverse this startling trend. Follow tips outlined in previous slides.

Case studiesQuestions and Answers