Nursing Law & Order

American Association for Long Term Care Nursing

AALTCN is a fairly new association that promotes the importance of the entire nursing department of long term care facilities. The organizational will attempt to remove" fragmenting silos to promote working relationships that support a caring culture" by addressing issues that affect the entire team. This quote appears in the November 2007, Provider magazine, the journal for long-term care professionals.

For additional information about AALTCN, see its website at http://www.LTCNursing.org.

This is a refreshing approach for a nursing-focused association and organization.

What do you think?

Cheryl Johnson, R.N, a Nursing Leader Passes

Cheryl Johnson, R.N., President of the United American Nurses (http://www.uannurse.org) and the Michigan Nurses Association (http://www.minurses.org) passed away Sunday, October 28, 2007 surrounded my family and friends. She had been admitted to the University of Michigan Health System on Friday, October 19 with a ruptured brain aneurysm.

The AFL-CIO President John Sweeney praised Johnson as a real pioneer for nurses. http://blog.aflcio.org/2007/10/29/workers-mourn-death-of-uan-president-cheryl-johnson/   She was a member of the AFL-CIO Executive Council (http://www.aflcio.org/aboutus/thisistheaflcio/leaders/ecmembers_gl.cfm)   and vice president of the Coalition of Labor Union Women, an AFL-CIO constituency group. See http://www.cluw.org/.

Keep Cheryl Johnson and her family in your thoughts and prayers.

Does Your State Board of Nursing use TERCAP?

What is TERCAP? It the Taxonomy of Error , Root Cause Analysis and Practice- Responsibility. The TERCAP project was implemented in 1999 by National Council of State Boards of Nursing Board of Directors (http://www.ncsbn.org) who appointed a task force to develop new knowledge about the causes of nursing practice breakdown.

TERCAP was designed as an intake instrument for capturing data from nursing boards' discipline cases.  It creates an opportunity for consistent data collection and future analysis of compiled data by NCSBN and Member Boards.  The NCSBN Research Department will have access to the data submitted by participating Member Boards for the purpose of research through data analysis.  Only Member Boards participating in TERCAP will have access to the TERCAP reports, cases, and data until such time as there are a sufficient number of cases to prepare formal reports that will be published.

The Kentucky Board of Nursing Consumer Protection Branch, Investigation and Discipline Section, is a participating Member Board of the National Council of State Boards of Nursing TERCAP project. To access the Kentucky Board of Nursing TERCAP Data Collection click on the following link.  http://kbn.ky.gov/conprotect/investdiscp/NCSBN-TERCAP.htm.

Does your state BON participte in TERCAP? 

2007 Ohio Nurses Association Election

Please welcome the 2007-2009 ONA Board of Directors and Officers:

President Barbara Nash, Mid-Ohio District
First Vice President Diane Winfrey, Greater Cleveland District
Second Vice President Daniel Kirkpatrick, District 10
Secretary Linda Riazi-Kermani, Summit and Portage District
Treasurer Georgetta Prystash, Northwest Ohio District

Board of Directors Unstructured
Tracy Ruegg, Mid-Ohio District
Dorcas Fitzgerald, District 3

Board of Directors/Member of E&GW Commission
Paula Anderson, Mid-Ohio District
Joyce Powell, Summit and Portage District
Kelly Howard, Southwestern Ohio District

Local Unit Member, E&GW Commission
Jacinta Tucker (4-year term), East-Central District
Rose Marie Martin (2-year term), Mid-Ohio District

Nominating Committee
Karen Budd (Chair), Summit and Portage District
Mary Ellen Seiter, District 3
Annette Lavender, Southwestern Ohio District
Sally Morgan, Mid-Ohio District
Yvonne Smith, Stark-Carroll District
Julie Senita, Ashtabula District
Barbara Conn, Southern Ohio District

ANA Delegate at Large
Barbara Nash, Mid-Ohio District
Gingy Harshey-Meade, ONA CEO
Shirley Fields-McCoy, Mid-Ohio District

ANA Delegate, Unspecified
Linda Warino, District 3
LaTonia Denise Wright, Southwestern Ohio District

ANA Delegate, Nursing Service Administration
Diane Winfrey, Greater Cleveland
Susan Yoder, District 3

ANA Delegate, Nursing Education
Mary Beth Matthews
Dorcas Fitzgerald, District 3
Karen Budd, Summit and Portage District

ANA Delegate, Nursing Practice
Paula Anderson, Mid-Ohio District
Linda Riazi-Kermani, Summit and Portage District
Johanna Edwards, Summit and Portage District
Brennon Giles, Southern Ohio
Rose Marie Martin, Mid-Ohio District
Eric Williams, District 3
Joyce Powell, District 3
Jean Ansley, West Central District
Joyce Cox, Mid-Ohio District
Jennifer Cook, Southwestern Ohio District
Joylynn Daniels, Southwestern Ohio District
Sally Morgan, Mid-Ohio District
Ferlinda Powers, Mid-Ohio District
Joyce Shaffer, District 3
Kelly Christian, Southwestern Ohio District
Holly Klein, Summit and Portage District
Deborah Martz, Mid-Ohio District
Lynette Roush, Mid-Ohio District

UAN Delegates
Linda Warino, District 3
Rose Marie Martin, Mid-Ohio District
Eric Williams, District 3
Linda Riazi-Kermani, Summit and Portage District
Paula Anderson, Mid-Ohio District
Joyce Shaffer, District 3
Jean Ansley, West Central District
Jennifer Cook, Southwestern Ohio District

Center for American Nurses Delegates
Kathleen Montgomery, Greater Cleveland District
LaTonia Denise Wright, Southwestern Ohio District

For information about the Ohio Nurses Association, see its website at www.ohnurses.org.

Kentucky Board of Nursing FY Report

The Kentucky Board of Nursing FY 05-06 Annual Report is available online at http://kbn.ky.gov/board/annualrpt.htm.

For a breakdown of the Kentucky Board of Nursing disciplinary and investigation actions, see page 10.

New Board Members Appointed to Indiana Nursing Board

Governor Daniels appointed several new members to the Indiana Board of Nursing. See http://www.indiananurses.org/news/100607_governor_appoints_nursing_board.htm. Several of these appointees are members of the Indiana State Nurses Association.

Do you think all RNs (this includes Advance Practice Registered Nurses (APRN)) appointed to a Board of Nursing should be required to be a member of the American Nurses Association and an ANA-affiliated state nursing association (called constituent members associations or CMAs now)? Should Board appointees be required to belong to a specialty nursing association  (such as the INS, AACN, ENA,  AANA, etc.)?

In your opinion, does it matter?

600 Nurses in Michigan Trying to Organize

Six hundred nurses at Detroit Medical Center are in a union organizing effort with the Michigan Nurses Association. It has been alleged that management is conducting an anti-union campaign. http://www.laborradio.org/node/7081.

Do you think management should conduct anti-union campaigns when nurses organize?

Do Your Homework Before Selecting An Attorney

An article in the October 19, 2007 Cincinnati Business Enquirer's Law & Accounting Trends Advertising Supplement addresses attorney selection. The Better Business Bureau (BBB) suggests :

1. Hiring an attorney with expertise and experience in the area you need;

2. Hiring an attorney who will give you candid advice; and

3. Don't expect to receive good legal advice without paying for it and the cheapest price for legal services isn't always the best price.

If you need assistance with a criminal matter, hire an attorney with significant experience in criminal defense. If you have a workplace discrimination matter, hire an attorney with significant experience in employment law. If you have a licensure matter, hire an attorney with significant experience in administrative law and who has experience working with nurses and/or other licensed healthcare professionals.

Ohio Democratic Nurses Caucus

I joined the Ohio Democratic Nurses Caucus again at the Ohio Nurses Association Convention last weekend. Dues are $10.00 and it supports a worthy cause in my opinion.

For additional information about the Ohio Democratic Nurses Caucus, see its website at http://www.ohdemnurses.org/mambo/index.php?option=com_frontpage&Itemid=1 or contact its Chairperson, Carol Roe, R.N, M.S., J.D. at [email protected]. 

Carol is a fellow nurse attorney in the Cleveland, Ohio area and an active member of the Ohio Nurses Association (http://www.ohnurses.org), and the Greater Cleveland Nurses Association (http://www.clevelandnurse.org).

I would also join the Ohio Republican Nurses Caucus if such an organization was formed because I want to support organizations or associations that focus on professional, policy, advocacy, legal, and regulatory issues for nurses. After all, it is a nursing world. Don't believe me, see http://www.nursingworld.org.

Graduate Nurse Status in Indiana

Do you know there is an Indiana hospital allowing a nursing school graduate to practice and function as a RN under the supervision of a RN preceptor? I won't mention the name of the hospital however the student was told that she could function in this capacity until she received her license and she is being paid RN wages. If the nursing student wasn't a client of mine, I would report this Hospital to the appropriate federal and state regulatory authorities for investigation. 

Hint, Hint! There is no graduate nursing student status in Indiana anymore! There used to be several years ago. This was changed I believe ten years ago, around 1996-1997.

As a matter of fact, when I graduated with my ASN in 1993 and took my nursing board exam (it was a full day pencil and paper exam back then), I worked as a graduate nursing student the summer after my graduation at Decatur County Memorial Hospital in Greensburg, Indiana on a adult and pediatric med-surg floor.

The rationale for the graduate nurse designation was that it took several months to receive your results from the nursing boards. This is no longer true as the NCLEX-RN and NCLEX-PN exams are now offered on a computer and students are informed within days of testing of the pass/fail results.

What's the bottom line here? DO NOT assume that your nursing employer including human resources, your immediate nursing supervisor or mid or executive-level nursing management knows the law, regulations, and standards regarding the practice of nursing in your state.

Nursing students who have completed their initial program should not practice nursing or perform nursing tasks (administering medication, perform nursing assessments, etc.) unless this is authorized by the state nursing law and regulations. Nursing students can assist the licensed nurses with delegated functions and perform the same tasks that an unlicensed technician or nursing assistant performs.

Ask questions if a situation doesn't appear normal or doesn't feel right. Trust your gut instincts. Contact your state board of nursing, state nurses professional association, or a licensure defense attorney for clarification.

YOU as a licensed nurse or nursing student who recently tested, awaiting the authorization to test, etc. are legally responsible and accountable for your actions. As you may know practicing nursing without a license is grounds for disciplinary action with a state board of nursing.

Why is the practice still continuing in this Hospital when it violates the Indiana Nurse Practice Act and subjects nursing students to charges of practicing nursing without a license? Why isn't this Hospital updating its policies and procedures, position description, and practices to comport with state nursing law and regulations? Just imagine if this has "slipped through the cracks" at the Hospital, what else is brewing there?

In my opinion, this Hospital needs to hire an attorney with a nursing background to review its nursing policies, procedures, and practices from top to bottom. What do you think?

A Job and a Paycheck vs. Professional Nursing Practice

How do you characterize professional nursing practice? Do you think the majority of nurses practice in accordance with the standards of professional nursing practice? Do you think the majority of nurses think in terms of a job, paycheck, and only in terms of unit or facility-based issues?

I admit its hard to see the forest from the trees from ground level when you are in the trenches. I can remember having a job and paycheck mentality at various stages of my career as a nurse and as an attorney. The paycheck mentality for me stemmed from my unhappiness with the work environment.

Where are you in your career?

Dues Increase Passed by ONA House of Delegates!!

I attended the ONA Convention this weekend. A dues increase was passed by the House of Delegates today. The Association will be able to hire additional staff and "do the work" of the profession with the increase in dues revenue.

I was elected by my colleagues as a delegate to the American Nurses Association House of Delegates and Center for American Nurses Membership Council both which meet in June 2007 in Washington, D.C.

If you have never attended a state nurses association convention, I would encourage you to attend. The energy throughout the convention is dynamic and there are lively discussions and debates of current nursing issues. A group of us talked to 1am this morning about current nursing issues. 

Are You a Perfect Nurse?

I received this comment today from a nurse:

I carry malpractice ins. against the advice of most all my RN co-workers. I believe in it.....but I was sad to hear Susie Orman on her show this past Saturday night tell a nurse, that private malpractice insurance was NOT necessary, as long as the nurse was covered under her employer & the nurse followed all policies perfectly. Thoughts?

Thank you for contacting me. I don't follow the Susie Orman show. All licensed professionals need liability insurance insurance, especially licensed healthcare professionals.

A healthcare facility insurance policy is meant to protect the facility and it may cover you as a employee of the facility. Do you have a copy of employer's liability insurance policies? Are you provided with a copy of your employer's liability insurance policy(ies) whenever changes are made to the policy? Of course not, because the policy is not meant to protect you, its meant to protect the facility.

Also I don't know of any perfect nurses who follow all policies perfectly and who practice in a perfect nursing work environment. Nurses are held to an ideal of perfection and angelic like behavior which is unrealistic.

All nurses should consider having their own professional liability insurance policy written by a major insurer that insures nurses and licensed healthcare professionals. See www.nso.com  and www.proliability.com.

Your own professional liability insurance policy will protect you in the event you are named as defendant in medical malpractice case and in the event a complaint is filed against your license with the Board of Nursing or another regulatory board. Your employer's insurance will not assist you in defending your license. Why? Most of the time its the employer reporting the nurse to the Board of Nursing and the policy is written to protect the facility.

Considering the majority of nurses practice in mandatory reporting states (see  https://www.ncsbn.org/Discipline(1).pdf at page 29) i.e. employers are required to report suspected or alleged violations of the Nurse Practice Act and/or Board of Nursing regulations to the Board of Nursing, it makes since that all NURSES consider purchasing his or her own professional liability insurance.

Most nurses don't have professional liability insurance which I think is the reason why most nurses don't retain legal counsel in Board of Nursing disciplinary investigations. Professional liability insurance for nurses is inexpensive and I pay less than $100 a year for my professional liability insurance that covers my nursing practice (as a home health RN) and my consulting practice. I have another policy that covers my law practice.

Also I can tell you as a licensure defense attorney who has represented nurses who work in a variety of settings from hospitals to home care to independent practice to nursing homes, employers don't operate from a "let's do what's best for the nurse or our nursing employees" point of view; Business decisions and judgments are made and fairness is in the eye of the beholder.  Its your role to be your own risk manager and protect your license and livelihood. Professional liability insurance should be part and parcel of your portfolio as a professional.

Drug-Testing Options in Healthcare

An article in Provider, the journal of the American Health Care Association and the National Center for Assisted Living, October 2007, suggests that providers take a stronger stance against use of the illicit drugs and alcohol by drug testing employees. See www.providermagazine.com.

The four major options for drug-testing include:

1.  Post-Job-Offer Testing;

2.  Suspicion Drug Testing;

3.  Random Drug Testing; and

4.  Post-Accident Drug Testing.

Positive drug tests by nurses in the workplace, especially for illicit drugs or medications that were not prescribed by an authorized prescriber, can have licensure implications. Most states pursuant to the Nurse Practice Act and Board of Nursing regulations requires employers to report the positive drug test to the State Board of Nursing. This triggers a disciplinary investigation.

What are your opinions regarding drug testing?

Kentucky and West Virginia Nurses on Strike!

Kentucky Nurses Association and West Virginia Nurses Association Nurses are on strike at Appalachian Regional Healthcare  (ARH) over the current contract, which expired Sunday. See http://www.inform.com/related_content/42395678,0 and http://www.kentucky.com/news/state/story/191488.html.

ARH officials declined to say how many job openings there are at the seven hospitals in Eastern Kentucky and two in West Virginia affected by the strike.According to Pat Tanner, the lead negotiator for the Kentucky and West Virginia nurses associations, at least 650 registered nurses walked out when their contract expired at 12:01 a.m. Monday.

Is It Fair to Base Union or Professional Association Dues on the Gross Income of Members?

I obtained this information from the SEIU 1199 website. See http://ltc.seiu1199.org/HCFaq.aspx

Dues in SEIU District 1199 are 1.75% of gross pay, or $1.75 for every $100 you make.

So for every $1,000.00 grossed, the dues will be $17.50. I have several clients who are Ohio IPs and these nurses can gross from $50,000 to $80,000.00 a year or more.

An Ohio IP Nurse with SEIU labor representation who grosses $50,000 year may pay $875.00 a year for labor dues. This is speculative at this point but based on the figure provided on the SEIU 1199 website, which doesn't mention a cap.

This is expensive and there should be a cap, i.e. a maximum amount on which the SEIU figures dues for Ohio IP union members. A cap at $30,000 would yield $525.00 in dues.

In the spirit of full disclosure, I should note that I am member of the Ohio Nurses Association. The Ohio Nurses Association (ONA) is a union and a professional association. I do not belong to an ONA collective bargaining unit. In addition to being self-employed as an attorney, I am employed as a home health R.N. The home care agency where I am employed is unorganized (no union).

As a RN and a licensure defense attorney I support the rights of individual nurses to determine what's best for them in the workplace:

1. Working pursuant to a collective bargaining agreement;

2. Working in a non-union setting and utilizing workforce advocacy tools (see the Center for American Nurses at www.centerforamericannurses.org) ; or

3. Negotiating with an employer and having an individual employment contract or agreement.

The Ohio Nurses Association is proposing a dues increase for its membership which will be decided at the Convention next week and its only 0.8% of a stipulated salary. ONA Union and Non-Union Members have different stipulated salaries.

I can't imagine an attorneys union. Even more unimaginable, would be a union of attorneys proposing to base dues on a gross percentage of attorney members income. You can say of course, I am comparing apples to oranges my comparing attorneys to nurses and other healthcare professionals.....

Should unions and professional associations base membership dues on the salary of its membership? I can assure you, the American Bar Association, The American Association of Nurse Attorneys, or the state Bar Association that I belong to would NEVER propose such a concept.

Can you explain why this is occurring? What's your opinion? If you want to express your opinion and would like for me to post the comment without your name and email address, just let me know.

Ohio IPs Vote for SEIU

This information is posted on the SEIU 1199 website:

Congratulations Ohio Independent Providers!  Friday September 28^th, the American Arbitration Association counted ballots in your Home Care Election and you won by a big margin: 1726 voted to be represented by SEIU 1199.  Only 328 people voted against forming a union.  That’s almost 85%!  And while we should all feel good about this victory, there’s still A LOT of work to do.   Negotiations with the state will probably begin in January, which means we’ve got about 3 months to elect our negotiating committee and put together our proposals.  To help bring it all together we’ll be hosting an Independent Provider conference in Columbus on November 29^th and 30^th, so make sure you save the date. See http://ltc.seiu1199.org/blogs/we_won_1726-328/archive/2007/09/28/1726-to-328.aspx.

There are several hundred and may a thousand or so, Ohio IPs who are registered nurses and licensed practical nurses and function as small business owners essentially.

Do you think SEIU representation will hurt, hinder, or help the professional practice of nursing in the State of Ohio?

Do you think a union like the SEIU that includes a variety of occupations does a better job with adminstering a Collective Bargaining Agreement (CBA) and addressing the workplace and professional practice needs of its membership than a union devoted exclusively to one occupation or profession? For example, the UAN (see www.uannurse.org) and the Ohio Nurses Association (www.ohnurses.org) only represent RNs.

Do you think it matters? Or is a union a union a union in your opinion? Do you think RNs should only be represented by a RN union and LPNs by a LPN union? Do you think RNs and LPNs should be represented by a nursing union?

Regardless of how you feel about healthcare unions and nurses, this is a significant step for the SEIU and the organized healthcare labor movement in Ohio. Will we see more healthcare organizing efforts of nurses in central, southern, or northern Ohio?

Update: Nursing Scope of Practice vs. Practice of Law

I posted last month on whether it was permissible for nursing instructors, professors, and faculty to counsel and advise nursing students on completion of a Board of Nursing Application for Licensure by Examination. I submitted my question for consideration to the Ohio Board of Nursing.

The Ohio Board of Nursing's General Counsel, Holly Fischer replied (via email) that the question raised is whether advising an individual in answering license application questions constitutes rendering legal advice. She also referred me to the Ohio Supreme Court's Board on the Unauthorized Practice of Law. See http://www.nursing.ohio.gov/PDFS/NextMeeting/M2/1.3EDReport.pdf.

Ohio Board of Nursing staff are preparing an article to be published in the next edition of Momentum, the Board's quarterly newsletter, on this issue. The Ohio Board of Nursing, Executive Director, Betsy Houchen, in her report to the Board at its meeting last month, noted that "applicants are responsible to how they complete the application. Our response to questions is that if in doubt, report and disclose all information, contact the Board for clarification, or contact an attorney for legal advice." (I added the emphasis here).

I did not follow up with the Ohio Supreme Court Commission on the Unauthorized Practice of Law. As a licensure defense attorney, my goal is to create an awareness of this issue. An article in the Board's Newsletter will facilitate a discussion and most certainly publicize this legal minefield for consideration by nursing schools, faculty, and nursing students.

Practicing law without a license can be a crime (depending on the state) and can subject a nurse to civil penalties and the State can seek injunctive relief. Moreover if a nurse is accused of the UPL, the State Board of Nursing will most likely investigate the nurse. What nurse would want to be involved in a concurrent civil (UPL investigation), criminal (law enforcement to determine if a crime has been committed), and/or administrative (Board of Nursing investigation) cases? This type of case would most likely receive some media coverage as well.

Furthermore its not beneficial for nursing students and NCLEX-Applicants to rely on lay advice in a matter of such professional and financial significance- their license and nursing career.