Nursing Education & Law

Alice E. Dupler, J.D., APRN-BCClinical Associate Professor

Enduring Understandings?• Like nursing, law is based on guiding values and

beliefs, the interpretation of which are fluid in a global society

• Unlike nursing, interpretation of law will not change absent evidence meeting a predetermined burden of proof

• Nursing educators are the nexus through which the profession evolves legally into the entity it will be in the future

Concepts and Competencies• Faculty will be able to describe and legally define:

– Statutory & case law governing nursing & nursing education– Shared governance by faculty and students– Academic freedom in class and clinical settings– Protections against personal liability– Academic freedom and scholarship

• Faculty will learn a strategy to assure course syllabi are consistent with law, and, university and college policies

• Faculty will know how to consistently apply best practices for admission and progression of students based on case law

Consensus Policy Statement on the Educational Advancement of Registered

Nurses

Nursing workforce requires:

‘Integration of evidence-based, clinical knowledge and research with effective communication and leadership skills’

Call to action System changes in nursing practice and education Life long learning by registered & advanced nurses Funding for educational initiatives

Tri-Council for Nursing (AACN, ANA, AONE, NLN)

5-14-2010

We Say We Teach: Evidence Based Practice

• Conscientious use of current best evidence in making decisions about patient care

• EBP Components:• Systematic search for and critical appraisal of the

most relevant evidence to answer a clinical question

• One’s own clinical expertise• Patient preferences and values

Melnyk & Fineout-Overholt, 2005

Nursing and Nurse Educatorswho do we think we are?

http://www.youtube.com/watch?v=Noaqf-JE3UI&feature=fvw

Moment for reflection for nurses & educators!

• Who were we legally?• Who are we now legally?• Who are our clients?• Who are our students now?• How has nursing education changed

legally to meet their needs?

Is there a disconnect? Is there a disconnect between what we believe to be

nursing and what it is legally in practice?

As a classroom or clinical instructor, do we assure the public’s trust and facilitate personal and professional accountability?

What if Josie King was your S1 student’s patient?http://www.qsen.org/video/josieking/

The Law

The Basics!

‘It’s all about the evidence’

Health Law & Regulation • State

– RCW / WAC– Licensing

• People (RN, ARNP)• Places (Hosp, NH, BH)• Professional Programs

– Enforcement• Commissions• Inspections• AGs & ALJs

– Civil• Licensure/Fines

– Criminal• Battery/Homicide

• Federal– Code / CFR– Certify

• Care Services (MC / Mc)• Places (Labs, HHA)

– Enforcement• Health & Human Services• Joint Commission

– Civil• MC/Mc Fraud• Civil Rights

– Criminal• Intent to Deny Rights

Nursing &

Nursing Law

Florence Nightingale (1859)

‘Nursing is to put the patient in the best condition for nature to act upon him’

American Nurses’ Association Social Policy Statement

(National Certification Body)

Nursing is

• Protection, promotion and optimization of health & abilities, prevention of illness and injury,

• Alleviation of suffering through the diagnosis & treatment of human response, and

• Advocacy in the care of individuals, families, communities & populations

Registered Nursing Practice(RCW 18.79.040(1))

(Washington State Licensure Body)

Nursing isthe performance of acts requiring substantial specialized knowledge, judgment and skill based on the principles of the biological, behavioral, and sociological sciences in either….

Registered Nursing Practice(RCW 18.79.040(1) (con’t)

• The observation, assessment, diagnosis, care or counsel, and health teaching of the ill, injured, or infirm, or in the maintenance of health or prevention of illness of others;

• The performance of additional acts…proper…to be performed by a registered nurse…;

• The administration, supervision, delegation and evaluation of nursing practice.

Advanced Registered Nursing PracticeRCW 18.79.050

"Advanced registered nursing practice" means the performance of the acts of a registered nurse and the performance of an expanded role in providing health care services as recognized by the medical and nursing professions, the scope of which is defined by rule by the commission...Perform specialized and advanced levels of nursing … Upon approval by the commission, an advanced registered nurse practitioner may prescribe legend drugs and controlled substances contained in Schedule V of the Uniform Controlled Substances Act, chapter 69.50 RCW, and Schedules II through IV subject to RCW 18.79.240(1) (r) or (s).

‘Advanced Nursing Practice’WAC 246-840-299

• The delivery of expert nursing care by registered nurses who have acquired experience and formal education in specialized areas. A nurse with this preparation may qualify as ARNP as delineated in WAC 2460840-300

Determine Differences in Scopes of Practice

Standards of Nursing Conduct or Practice WAC 246-840-700

Each individual upon entering the practice of nursing, assumes a measure of responsibility and public trust and the corresponding obligation to adhere to the professional and ethical standards of nursing practice.

The nurse shall be responsible and accountable for the quality of nursing care given to clients.

This responsibility cannot be avoided by accepting the order or directions of another person. Refer to the map!

Uniform Disciplinary ActRCW 18.130

• Failure to adhere to standards• Failing to assess, evaluate or institute action• Willful or repeated failure to report or document• Willful or repeated failure to make entries• Willfully causing or contributing to physical or emotional

abuse• Sexual misconduct• Failure to protect from unsafe practices or conditions,

abusive acts, and neglect• Failure to supervise delegated persons• Violating confidentiality• Willfully abandoning clients

Violations of standards of practice

The nurse shall have knowledge of the statutes and rules governing nursing practice and shall function within the legal scope of nursing practice

Nursing Law in a Nutshell!

• Nursing is defined by the ANA & state approved certifying bodies

• States define nursing in statute & regulation based on nursing’s definition, and, geographically agreed upon scope of practice

• In so doing, the legal obligation of ‘duty’ is established

• As determined by what a reasonably prudent RN or APN would do under similar circumstances, a breach of the statutory duty may occur

• If the breach of duty is the proximate and legal cause of harm, damages may be awarded

• Legal standard of evidence may be: preponderance of evidence clear and convincing evidence beyond a reasonable doubt

So you think you might sue or be sued?

• Lexis-Nexis search – nursing w/1 student or faculty (34 appellate cases in 10 years)

• Programmatic claim - Decertification of program

• Faculty claims - Violation of contract / Denial of tenure / Preceptor liability

• Student claims (themes – violation of due process, discrimination, contract)

– Academic performance• Clinical work / practicum failure

• Privacy – OB blog re patient

– Student Conduct• Plagiarism – graduate student research

• Cheating – access to exam answers through faculty

• Sexual misconduct

– Other - Nursing faculty and student as witnesses

Higher Education and Nursing

Connect the dots!

Higher Education in the United States

(Federal law)

• Constitutional protections are not unrestricted– First amendment right – free speech– Fourteenth amendment right to liberty & property

interests unless due process provided

• Federal statutes – when Federal $$$ allocated, Federal law applies– Student scholarships and loans– ADA and AADA– Firearms and weapons

Higher Education in Washington State

(State law)• Title 28B Higher Education• Chapter 28B.30 RCW Washington State University

(Regents / Management)• Chapter 28B.76 RCW Higher education coordinating board• Chapter 18.79 RCW Nursing Care – Accrediting Bodies

– Nursing Commission – Nursing Programs / Faculty Quals

• American Colleges of Nursing Education• CCNE

Shared Governance• Primary responsibility for the teaching & research missions of the

university rest with the academic faculty– Academic planning (faculty/program development and evaluation)– Curriculum development (quality assurance / professional

accountability) – Institutional and college governance (mission, values, policies and

procedures-manuals, outcomes, benchmarks)– Peer review for tenure and promotion

• Faculty has a voice in governance through the College Faculty Organization and Faculty Senate

• Matters of public concern test• Official duties test

Washington State University

• University – Faculty Manual

• Code of Professional Ethics

• Duties and Availability

– Educational policies and procedures manual– Business policies and procedures manual

• College of Nursing Faculty Manual– Appointment, Promotion and Tenure– Faculty and student codes of conduct

Academic Freedom

Statement of Principles on Academic Freedom (1940, 1970 rev)

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

Academic Freedom

• Legal origins– 1800s: professions forming

– 1915 AAUP formed– 1940 Principles disseminated– Adler v. Board of Education in 1952

• Academic custom and usage

• Faculty : Student legal relationship

Faculty : Student Legal Relationship

The rights of students and faculty!

Historical Denial of Student Rights

• Beneficiary theory– Students are the beneficiaries of faculty knowledge and should

not question what they are being told

• Privilege theory– Students are privileged to be in academic setting and should

not be able to legally challenge faculty actions re: student performance

• In loco parentis doctrine– In the academic setting, faculty act ‘as parents’ in disciplining

students and therefore, their actions should not be challenged

Fourteenth Amendment!

‘no state can deprive a person of life, liberty, or property without due process of law’

– Due process = generally what is fair under the circumstances

– Only applies to public entities (‘state action’) unless $$$ accepted by private entity

Due Process Cases!Limited to academic conduct and

discipline• Dixon v. State of Alabama (1961)

– 6 students dismissed for ‘misconduct’– Supremes → notice & hearing prior to dismissal– Notice specific to allegations and basis for action

• Names of witnesses provided to student

• Date, place and time

• Written copy of findings

– Hearing - opportunity to present respective positions

• Goss v. Lopez (1975)– Emergency suspension (24 hr notice; 72 hr hearing)

Your case!• Nancy Nervous admitted with advanced academic standing;

completed her J1 classes at another university; withdrew in good standing due to ‘illness’

• At end of J2 semester, informed by dean in writing that she was being placed on academic probation due to ‘poor performance’– Poor relationships with others

– Erratic attendance during clinical

– Poor personal hygiene

– Needed to improve but with UAP’s approval, could advance to S1; continued on probation through S2.

• At end of S2, faculty ‘still dissatisfied’, failed practicum and recommended Nancy ‘sit out a year’ and retake S2 coursework

Nancy sues and alleges!

• 1983 claim – violation of civil rights– Property interest in education– Liberty interest in reputation– No due process

• Moment for reflection!– What should the evidence reflect?– What will you do?– What will the court decide?

University of Missouri v. Horowitz (1978) Supremes held: Faculty student relationship is based on expert

evaluation by faculty about the student’s progress and is cumulative in nature (progression through program)

So long as action not arbitrary or capricious, courts are ‘ill-equipped’ to evaluate academic performance and will not intrude into academic decision making

University’s decision was academic and not disciplinary; therefore, notice but no hearing is required

University of Missouri v. Horowitz (1978) Supremes guidance:

• Notice is required regarding– Academic performance– What must be improved upon– Under what time frames– Consequences and impact on progression if unmet

• No hearing required but can be afforded• Dismissal must not be disseminated publicly• So long as not arbitrary or capricious, courts will support

faculty progression decisions

The rest of the story!• Stella Sneaky allegedly cheated on an exam by obtaining answers to two

of the questions from a faculty member teaching the course and changing her paper prior to turning it in.

• Five days later, she was informed by the dean that she had been accused of cheating and could either take an F for the course or appear before the university student court.

• She appeared before the court; she was found not guilty and the chancellor’s office was notified per procedure of this determination.

• Legal counsel for the university filed an objection• Chancellor requested assistant chancellor to review both determinations• Chancellor subsequently found student guilty and student received an F• Stella was unable to register for classes the next semester .

Stella sues and alleges!

• 1983 claim for violation of constitutional and civil rights

• Violation of due procedural due process rights

What now????

Jones v. Board of Governors of University of North Carolina

• Courts will allow for ‘great deference’ so long as ‘rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school does not occur’

• In this instance, student would suffer ‘irreparable injury’ as compared to university’s potential harm with reinstatement under appeal

• Arguably irregular proceedings occurred; ‘stark divergence from procedures’…procedural due process violated.

Your next case!• Marcia Murphy, who had a serious hearing disability, sought to be

trained as a registered nurse and enrolled at a college.

• Marcia was denied admission to the nursing program because the college determined that she could not safely participate in a normal clinical training program due to her disability, and that ultimately it would be unsafe for her to practice as a nurse.

• The college also determined that any modification in the training program to enable the individual to safely participate would prevent her from realizing the benefits of the program.

Marcia sues and alleges!• The college, which received federal funds, violated §

504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.S. § 794.

• The college violated her 14th Amendment rights to due process and equal protection under the law

Southeast Community College v. Davis (1979)

Supremes held:• Although Rehab Act prohibits discrimination when school receives

federal funding if student is ‘otherwise qualified’ and can be ‘reasonably accommodated’, student here was not ‘otherwise qualified’ (essential functions) and required accommodation would be too expensive, especially given the clinical component of the program.

• 504 imposes no requirement upon an educational institution to lower or effect substantial modifications of its standards in order to accommodate handicapped persons; the institution's unwillingness to make major adjustments in its nursing program to accommodate the individual did not constitute unlawful discrimination.

Americans with Disabilities Act Section 504 of the Rehabilitation Act

Americans with Disabilities Act Amendments Act 2008

• A student with a disability is a person who has, or is regarded as having:– a physical or mental impairment – which substantially limits a major life activity

• Two part test:– First, the student must demonstrate a physiological disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more of the … body systems.

– Second, the student must establish that this impairment substantially limits the student’s capacity to provide self-care, or, to perform manual tasks such as the ability to walk, see, hear, speak, breathe, learn or work.

Students with Disabilities

• Although a student may meet this definition the law does not assume that a student with a disability is able to meet the requirements of an educational program

• The law requires only that an ‘otherwise qualified individual’ not be excluded because of the disability.

• To determine whether a student is ‘otherwise qualified’, faculty must clearly define the essential competencies of nursing which include: abilities required to observe and communicate, physical capacity and motor skills, intellectual capacity and cognitive skills, behavioral, social, and professional attributes, and decision-making skills.

• The essential functions provide the basis for admission and progression decisions. Must be clearly stated and accessible to students.

Nursing students today• Currently, law clearly protects students under the Rehab Act, the

ADA, and the ADAAA, so long as the student has a physical or mental impairment that substantially limits a life activity and the student can perform the essential functions required of a nurse with or without reasonable accommodation.

• An accommodation is an adjustment or modification to an activity, course, program, service, or facility that enables a qualified student with a disability to have an equal opportunity to demonstrate the capacity to successfully complete the educational program in which they are enrolled

Faculty Strategies for Success!

• Prospective students are not required to disclose their disability and need for accommodation prior to admission but they need to do so immediately upon admission if they desire an accommodation.

• Notice of this requirement should be included in admission letters sent to all students with directions for accessing information regarding the process required by the university and the college to provide timely determination of the disability and subsequent accommodations to facilitate the student’s successful completion of the program.

• A statement for students requiring accommodations while completing required coursework should be included in each course syllabus.

Faculty Strategies for Success!

• Academic adjustments may include priority registration, a reduced credit load, substitution of one course for another and extended time for testing.

• Following admission to the nursing program and approval of a student’s request for an accommodation, the student must voluntarily inform the faculty of record for each class in which they are enrolling of their need for an accommodation.

• Strategies are typically integrated into academic admission and progression procedures, theoretical course content delivery, or clinical placement assignments. They include note takers, interpreters, videotext displays, Braille calculators, assistive listening devices, telephone handset amplifiers, institutional computers with screen reading, voice recognition and other hardware or software.

Faculty should know• The college is not required to fundamentally alter the nature of the nursing

program or incur undue administrative or financial burdens.

• A nursing program is not legally required to substantially modify essential requirements such as excusing students from core classes required of all students.

• Extended time may be given a student to complete a test; however, faculty are not required to change the content of the test to accommodate the student’s needs. Testing must measure the student’s knowledge rather than the extent of the student’s disability.

• Assistive devices must effectively meet the needs of the student; however, colleges are not obligated to provide the most sophisticated aid available.

Clinical faculty should know• a nursing program is not required to provide a personal attendant for clinical

supervision, tutoring or typing

• a student with a disability may not require a program to provide individually prescribed devices or services of a personal nature

• although the student is not required to discuss the disability and adaptations prior to the clinical rotation, it may be prudent to meet with faculty and, when appropriate, with agency staff in advance of the placement.

• plans for clinical assignment and accommodation should be made jointly, considering both the student and agency needs

• Best practice - carry telephones with text messaging capabilities to provide immediate communication. Text messaging allows the student with a hearing disability, as well as faculty and agency staff, to feel more at ease by facilitating immediate access to clinical faculty

Another case!• Ellen Energetic, a 51 year old former lab tech and president of the hospital’s

volunteer organization, was admitted to a pre-licensure nursing program

• J1 and J2 went well; however, there seemed to be a clash between her alleged attitude of ‘thinking she knows more than she does’ and her instructor’s alleged ‘resenting (her) from the beginning because of her knowledge and health care experience.’

• During her S1 rotation, Ellen contaminated the newborn nursery; several weeks later, she was allowed to withdraw rather than receive an F because ‘she didn’t ‘maintain cleanliness.’ She was given an opportunity to retake the course; she successfully passed

• During S2, she failed to maintain sterile procedure during a dressing change and received an F. The faculty member refused Ellen’s appeal to convert this to a W

• After the UAP committee could not unanimously agree re Ellen, the dean terminated her enrollment from the program

Ellen Sues and Alleges!!!• 1st amendment violation of free speech• 14th amendment violation of

– Due process– Equal protection / liberty

• Age discrimination• Civil rights act (1871) – ‘personal animus and ill will’• Breach of contract

– Unfair grading– Inaccurate anecdotal faculty notes

What will you do!

Clements v. County of Nassau

• Dean’s decision was academic and not disciplinary in nature; ample notice over time was given – no due process violation

– Court’s will not overturn academic decisions unless there is a ‘clear departure from accepted academic norms so as to demonstrate that the person or committee responsible did not actually exercise professional judgment’

– College grievance process was adequate

• Academic standards were ‘similarly situated’ for all students – no equal protection violation

• Faculty notes were not used for grading and not disseminated to public – no liberty violation

Southwell v. U of Incarnate Word

• ‘failure to pass course based on the faculty member’s daily assessments of student performance and were therefore entitled to be relied upon when deciding that the student would not pass the course and would be dropped from the program’

• Courts continue to support faculty rights to make judgments and assign grades for academic progression and termination from program

BUT – Contract Law Applies!

• Offer – consideration – acceptance• Verbal v. written• Modification of offer – consideration - acceptance

Your next case!• Susan Senior who had a 3.5 GPA was absent for several days to care

for a terminally ill friend. The course syllabus and the student manual indicated that clinical absences would result in failure of the course. She was verbally assured that she would receive an ‘I’ rather than an ‘F’ for the course; alas, her instructor entered an F on her grade report.

• Susan appealed and received a letter from the Dean stating she could continue to progress through the program while the appeal was pending.

• Subsequently, the UAP committee did not recommend conversion of her grade and the Dean subsequently dismissed her from the program.

• Susan then appealed the grade & dismissal based on breach of contract

Now what the heck should you do???

Lots of law on this one!• University and college p/p manuals and syllabus form the basis for

contract; dean’s letters do not.• Modifications of manuals and syllabi after publication to students will

likely not be upheld when student is ‘harmed’• Syllabi should provide for ‘notice’ and ‘hearing’:

– Name and credit hours of course

– Instructor contact info and hours of availability

– Objectives/competencies that form basis for evaluation

– Method for evaluation and scale for grading

– Required preparation for topics to be covered

• A fun case – student sued because faculty failed to round up from 69.713 to a passing score of 70%; since faculty had not ‘acted’ – no court action required

Whew! We did it!