Nursing Law & Order

60 Second Question

You are not handling and documenting controlled substances according to hospital hospital and the state nurse practice act and regulations. No one on your unit is because of short staffing and increased patient acuity. This makes it okay, right? You are fired from your staff nurse position related to the issues with documentation and handling of controlled substances. You are reported to the state board of nursing also.

I receive several calls a week like this from nurses. What steps can you implement in your nursing practice to prevent this from happening to you?

Diverting drugs and theft of drugs is felonious conduct. Local law enforcement and the pharmacy board gets involved (in some jurisdictions). Failing to document in accordance with acceptable nursing practice is a practice issue for state board of nursing consideration if reported or it may be handled "in-house" by the nursing employer.

My tip for the week: Document and handle medication especially controlled substances in accordance with facility policy and nursing standards of practice. If you decide to continue "what's common and accepted on your unit" don't be surprised, disgusted, and distraught when you are suspected of drug diversion or theft of drugs because I am providing you with a warning now. Your nursing employer, the state board of nursing and pharmacy, and local law enforcement won't be this understanding.

Office of Inspector General

Have you heard of the Health & Human Services Office of Inspector General? The OIG, under a Congressional mandate, established a program to exclude individuals and entities affected by these various legal authorities, contained in sections 1128 and 1156 of the Social Security Act, and maintains a list of all currently excluded parties called the List of Excluded Individuals/Entities.

Bases for exclusion include convictions for program-related fraud (medicaid or medicare fraud) and patient abuse, licensing board actions (nursing board revokes or suspends a nursing license, etc.) and default on Health Education Assistance Loans. For additional information see the OIG website.

Why I am mentioning this today? I just had lunch with a nurse who was convicted several years ago of theft of drugs, a felony. His license was suspended by a Board of Nursing for a period of time. Now this nurse is being subjected to a mandatory five year exclusion from working in any healthcare facility in any capacity that receives federal funds (Medicaid, Medicare, and other federal healthcare programs). The most significant Federal health care programs are Medicare, Medicaid, Tricare and the Veterans programs.The exclusion is broad and comprehensive.

For example, as mentioned in an OIG Special Advisory Bulletin  the following services may subject a facility or contractor to liability: Services performed by excluded nurses, technicians or other excluded individuals who work for a hospital, nursing home, home health agency or physician practice, where such services are related to administrative duties, preparation of surgical trays or review of treatment plans if such services are reimbursed directly or indirectly (such as through a PPS or a bundled payment) by a Federal health care program, even if the individuals do not furnish direct care to Federal program beneficiaries. See this link.

Felonious conduct for nurses in the context of providing care or related to the provision of healthcare may have many consequences: criminal, employment, administrative (board of nursing), civil, and/or professional (if credentialed and/or certified in a nursing specialty).

Nurses if you have been indicted for a felony or misdemeanor, retain a competent criminal defense attorney for the criminal matter AND a competent administrative attorney with experience in healthcare and nursing issues to represent, counsel, and advise you on the licensure issues. Proceeding pro se (without an attorney) has benefits (no cost to you) and risks (you may not know what to expect). 

Don't have a rainy day legal fund? See my post on the benefit of purchasing an individual professional liability insurance policy with a licensure defense protection benefit. Also consider purchasing Legal Basics for Professional Nursing Practice; the legal monograph discusses OIG exclusions under the section on nurses as criminal defendants. See the Center for American Nurses website at www.centerforamericannurses.org to purchase. It costs $15.26 for ANA members and $16.95 for non-members.

Legal Rainy Day Fund

Nurses, do you have a legal rainy day fund? I know I don't because I purchase professional liability insurance to cover my nursing practice as an employee of a home health agency and my law practice. What is a rainy day fund? Click on this link.

If you don't have professional liability insurance, then you need a legal rainy day fund to cover costs associated with defending your license before the Board, legal consultations, legal counsel for a negligence suit, etc.

Why am I discussing a legal rainy day fund? I receive many calls from nurses every day wanting legal advice or consultation for a workplace issue, regulatory matter, and clinical practice concerns.

The initial 10 minute consultation is free and provided at no cost. However attorneys don't make a living by providing free legal advice and consultations all day for all prospective client who call.

Lots of nurse don't obtain legal advice, consultation, and representation because of attorney fees and costs and as a result may make uninformed decisions related to not knowing their options for a specific situation and scenario. Just my two cents.

Are Nurses Business Savvy?

A colleague of mine commented on her concern that LPN Independent Providers (IPs) in Ohio don't utilize a contract or professional services agreement to memoralize the professional and business relationship with a RN(s) for patient supervisory visits. She commented that nurses are not taught anything about good or bad business practices and IPs (who may be LPNs or RNs) may not understand that they are running a business.

If you are not familar with Independent Providers see the Ohio Independent Provider Network for background information and cites to relevant laws and regulations.

In a nutshell, Ohio LPNs have a dependent scope of practice and when practicing an LPN-IP must utilize a RN for supervisory visits with patients and for other issues that arise in the context of patient care (these services are provided in the home environment) that are outside the scope of practice of the LPN. (Now isn't that a sticky situation! I will post on scope of practice later this month when I have more time, trust me.)

Are nurses as a group business savvy in your opinion? Are the business concepts associated with providing nursing care taught in nursing school? What do you think? In your opinion is this something that nurses should acquire post-graduation?

Chain of Command in Nursing

The chain of command in nursing exists for reason. We as nurses know what the chain of command is because we learned about it in nursing school and it was reinforced at nursing orientation as provided in the facility specific nursing policies & procedures.

A nurse contacted me this week after he was fired for not following the chain of command in a nursing home.  He had a complaint about a EMS worker and instead of discussing the issue and complaint with his immediate nursing supervisor in the nursing home, the nurse contacted the supervisor of the EMS worker directly.

What do you think based on the facts given? Is this appropriate?

For a refresher on the basics of the nursing chain of command, click here.

CPR

I completed my CPR class this week.

Did you know there have been instances in Ohio where nurses were reported to the Board of Nursing for not performing CPR correctly, not starting CPR in a timely manner, and failing to perform CPR when indicated. Are you competent to perform CPR and BLS as a licensed healthcare?

See the American Heart Association website for emergency and cardiovascular care.

NP Claims Study

Are you a NP? Download a copy of CNAs 1994-2004 Analysis of Claims with Risk Management Recommendations for NPs. SEE this link

If you are a NP do you have your own professional liability insurance policy? A nurse contacted my office this week. She is being reported to the Board for allegedly violating the Nurse Practice Act. I always ask if the individual has a policy with a licensure defense protection benefit and most of the time its "no." This particular nurse was told not to purchase insurance by a nurse attorney because she would be more likely to be sued especially as a hospital nurse.

Consider your options and make an informed decision on whether or not you purchase your own professional liability insurance policy. To make an informed decision, do a search on google and take a look at the articles on professional liability insurance for nurses and the websites for insurance companies that write policies for nurses like NSO and Marsh Affinity. Try to obtain an understanding of the purpose of professional liability insurance for nurses.

Ohio attorneys who don't carry legal malpractice insurance are REQUIRED to notify their clients of this fact. Ohio attorneys must tell clients in writing Pursuant to DR 1-104 of the Ohio Code of Professional Responsibility, I am required to notify you that I do not maintain professional liability (malpractice) insurance of at least $100,000 per occurrence and $300,000 in the aggregate. Ohio Code of Professional Responsibility

Should RNs and LPNs be required to purchase professional liability insurance? Is this implied by the the ANA Code of Ethics which requires acceptance of nursing accountability and responsibility, accountability for nursing judgment and action, and responsibility for nursing judgment and action?