Chapter 3
Legal and Ethical Issues
Sue E. Meiner, EdD, APRN, BC, GNP
On completion of this chapter, the reader will be able to:
1. Discuss how professional standards are used to measure the degree to which the legal duties of nursing care of clients are met.
2. State the sources and definitions of laws, such as statutes, regulations, and case law, as well as the levels at which the laws were made, such as federal, state, and local.
3. Explore why older adults are considered a vulnerable population, why this is legally significant, and the legal implications of such a designation.
4. Discuss the reasons behind the sweeping nursing facility reform legislation known as the Omnibus Budget Reconciliation Act (OBRA) of 1987, and understand its continuing significance and impact for residents and caregivers in nursing facilities.
5. Identify OBRA’s three major parts, and describe the key areas addressed in each.
6. Discuss the legal history of the doctrine of autonomy and self-determination, and cite major laws that have influenced contemporary thought and practice.
7. Identify the three broad categories of elder abuse, define seven types of abuse, and discuss the responsibility of the nurse in responding to suspected abuse of older adults.
8. Name and state the purpose of the legal tools known as “advance directives,” and list the major points that should be addressed in a Do Not Resuscitate policy.
9. Explain the requirements of the four major provisions of the Patient Self-Determination Act and the nurse’s responsibility with respect to advance directives.
10. Describe the values history and how it can help clients and health care professionals in preparing for end-of-life decisions.
11. Identify at least three ethical issues nurses may face in caring for older adults, with regard to the areas of care of the terminally ill, organ donation, and self-determination.
12. State the function and role, as well as the recommended membership composition, of an institutional ethics committee.
13. Relate at least three major reasons why the skillful practice of professional nursing can improve the quality of life for older adults in health care settings.
Professional Standards: Their Origin and Legal Significance
A standard of care is a guideline for nursing practice and establishes an expectation for the nurse to provide safe and appropriate care (Potter & Perry, 2004). It is used to evaluate whether care administered to clients meets the appropriate level of skill and diligence that can reasonably be expected, given the nurse’s level of skill, education, and experience.
Standards originate from many sources. Both state and federal statutes may help establish standards, although conformity with a state’s minimum standards does not necessarily prove that due care was provided. Conformity with local standards or comparison with similar facilities in the region may be considered evidence of proper care (Strauss et al, 1990). Some jurisdictions in the United States call this the community standard of care. However the community standard of care cannot be lower or hold fewer expectations than the federal standard.
The published standards of professional organizations, representing the opinion of experts in the field, are important in establishing the proper standard of care. The Scope and Standards of Gerontological Nursing Practice, published by the American Nurses Association (ANA) in 1994, is one example. However, in 2004 the ANA combined the scope and standards of practice into one book for all practice areas (ANA, 2004). Nurses who care for older clients should be familiar with these standards and those from all relevant sources. At the time of writing this publication, another Scope and Standards of Gerontological Nursing Practice is under way by the ANA. Refer to www.nursingworld.org for the latest issue.
Most health care facilities, at some point, seek accreditation status. This means that they voluntarily undergo a detailed survey by an organization with the skill and expertise to evaluate their services. One of the best known accreditation organizations is the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Because it is a well-known and long-existing organization, the standards established and used by the JCAHO to review health care facilities are often referred to in court cases to ascertain the appropriate standard of care. Thus the JCAHO is often considered the “industry standard,” even for facilities that are not accredited (Schreiber, 1990).
Overview of Relevant Laws
Sources of Law
Statutes are laws created by legislation and can be enacted at the federal and state level. Common laws are principles and rules of action and derive authority from judgments and decrees of the court; they are also known as case law (Black, 1979). Regulations are rules of action and conduct developed to explain and interpret statutes and to prescribe methods for carrying out statutory mandates. Regulations are also promulgated at the federal and state levels.
Federal and State Laws
The federal government, under the Social Security Act, has the primary responsibility for providing medical services to certain aged, disabled, or certain other classified American citizens. The government fulfills this obligation through the Medicare and Medicaid programs. These programs were enacted as part of the Social Security Amendments of 1965 (P.L. No. 89–97, July 30, 1965).1 Several amendments have been added since 1965, and the continuation or proposed modifications of amendments are still being debated at the time of publication of this text in 2010. Part C, the Medicare Advantage Plan, and Part D, related to prescription drug coverage, have been added in the 2000s.
The OAA Amendments (1988) increase states’ responsibilities for maintaining an effective long-term care ombudsman program. Ombudsmen are usually trained volunteers. Their role is to receive and resolve health and human services complaints affecting residents in nursing facilities. Nursing facilities must cooperate with and must provide access for the ombudsman to meet with residents. The OAA programs continue to operate even though the act, which was originally enacted in 1965, expired in 1995. As of the 105th Congress in 1998, Congress has not reauthorized the act. The result is that while programs for older adults continue, funding levels have suffered. At the direction of the President, CMS sought a long-term reauthorization from Congress in 1999 to ensure the availability of ombudsmen to assist in monitoring the care of older Americans in the nations’ nursing facilities (HCFA, 1998)
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
1. Increase a person’s ability to get health care coverage when the person begins a new job
2. Lower the chance of losing existing health coverage, whether the coverage is through a job or through individual health insurance
3. Help maintain continuous health coverage when a change of job occurs
4. Help purchase health insurance coverage individually if the coverage is lost under an employer’s group health plan and no other health coverage is available (HIPPA, 2004)
Among the specific protections of HIPAA, it:
1. Limits the use of preexisting condition exclusions
2. Prohibits group health plans from discriminating by denying coverage or charging extra for coverage based on the person’s or a family member’s past or present poor health
3. Guarantees certain small employers and certain individuals who lost job-related coverage the right to purchase health insurance
4. Guarantees, in most cases, that employers or individuals who purchase health insurance can renew the coverage regardless of any health conditions of individuals covered under the insurance policy (HIPAA, 2004)
There are several misunderstandings about what HIPAA provides. Note that:
1. HIPAA does not require employers to offer or pay for health coverage for employees or family coverage for spouses and dependents.
2. HIPAA does not guarantee health coverage for all workers.
3. HIPAA does not control the amount an insurer may charge for coverage.
4. HIPAA does not require group health plans to offer specific benefits.
5. HIPAA does not permit people to keep the same health coverage they had in their old job when they move to a new job.
6. HIPAA does not eliminate all use of preexisting condition exclusions.
7. HIPAA does not replace the state as the primary regulator of health insurance (HIPAA, 2004).
Older Adult Abuse and Protective Services
It has already been noted that the incidence of illness and disability increases with age. Old-old adults, those older than age 85, make up the fastest growing group (Zedlewski et al, 1989), and their health status often leads to changes in living arrangements both in homes and in institutions. These changes affect not only older adults but also often their family and others who must see to their care and living needs. These conditions can lead to neglect, deliberate abuse, or exploitation of older adults.
Unfortunately, mistreatment is not defined in the same manner across state lines. However, it is known that it occurs recurrently and episodically and not usually as an isolated incident (Ebersole et al, 2008).
The need to protect older adults from abuse is a subject of growing public policy interest. Lantz (2006) found the number of older adults who were mistreated or abused in the United States to be approximately 2 million. However, given the potential for hiding incidents of elder abuse in domestic settings as a “family secret,” the incidents of elder abuse are likely grossly underreported. Cultural differences have also lead to poor identification of the reaction to abuse.
Elder abuse is defined by state laws, which vary from state to state. However, there are three basic categories of elder abuse: (1) domestic elder abuse, (2) institutional elder abuse, and (3) self-neglect or self-abuse (National Center for Elder Abuse [NCEA], 2006). Domestic elder abuse refers to forms of maltreatment by someone who has a special relationship with the elder, such as a family member or caregiver. Institutional abuse refers to abuse that occurs in residential institutions such as nursing facilities, usually by someone who is a paid caregiver, such as a nursing facility staff member. Within these three broad categories are a number of recognized types of elder abuse.
An analysis of existing state and federal definitions of elder abuse, neglect, and exploitation conducted by the NCEA (2006) identified seven different kinds of elder abuse:
1. Physical abuse—use of physical force that may result in bodily injury, physical pain, or impairment
2. Sexual abuse—nonconsensual sexual contact of any kind with an older adult
3. Emotional abuse—infliction of anguish, pain, or distress through verbal or nonverbal acts
4. Financial and material exploitation—illegal or improper use of an elder’s funds, property, or assets
5. Neglect—the refusal or failure of a person to fulfill any part of his or her obligations or duties to an older adult
6. Abandonment—the desertion of an older adult by an individual who has physical custody of the elder or by a person who has assumed responsibility for providing care to the elder
7. Self-neglect—behaviors of an older adult that threaten the elder’s health or safety
Elder abuse generally occurs as the result of a number of complex factors. Abuse may be a result of caregiver stress. The physical and emotional demands of caring for a physically or mentally impaired person can be great, and the caregiver may not be prepared to undertake the responsibility. Supportive resources may also be lacking. It has been found that abuse tends to occur when the caregiver’s stress level is heightened by the elder person’s worsening condition (NCEA, 2006).
Because signs and symptoms of elder abuse in its many forms can be difficult to detect, the nurse must be educated in this regard and must be alert to the actions of others involved in the care of older adults, such as nursing attendants. It has been shown that the primary abusers of nursing facility residents are nurse aides and orderlies who have never received training in stress management and who are working in facilities that show evidence of administrative problems such as high staff turnover (Keller, 1996).
A training program designed specifically for nurse aides in long-term care facilities, providing information about abuse, including possible causes and conflict intervention strategies, was tested on 216 nurse aides in the Philadelphia area. In this study, training was shown to bring about significant improvement in attitudes toward residents, conflict with residents, resident aggression toward staff, and self-reported abuse actions by staff (Keller, 1996). This may suggest that training can serve as an effective abuse prevention strategy, and expansion to other care settings may be important in preventing abuse of older adults.
Adult protective services refers to the range of laws and regulations enacted to deal with abusive situations. The laws and regulations are typically administered by an agency within the state, such as the Department of Social Services, which receives and investigates complaints. Specific responses to safeguard abused or at-risk elders can include protective orders issued to shield older adults from abusive members of their households; elder abuse statutes, which outlaw harmful acts that victimize older adults; and laws to protect older residents of nursing facilities from abuse (Strauss et al, 1990).
States may also levy penalties for acts of elder abuse committed by those who are responsible for the care of older adults in nursing facilities or other institutions (Strauss et al, 1990). These laws are in addition to those already in effect to protect the rights of clients in facilities governed by federal regulation. Most states have mandatory reporting requirements for nurses, other health care workers, and facility employees who have a reasonable suspicion of elder abuse.
The definition of what constitutes elder abuse under these statutes varies. For example, emotional abuse can be acts such as “ridiculing or demeaning…or making derogatory remarks to a…resident”2; “any non-accidental infliction of physical injury, sexual abuse, or mental injury”3; and “unauthorized use of physical or chemical restraint, medication, or isolation.”4
A report of suspected abuse may be required on a “reasonable suspicion.” This implies that actual knowledge or certainty is not necessary. Most states provide immunity from civil liability for anyone reporting older adult abuse based on reasonable suspicion and in good faith, even if it is later shown that the reporter was mistaken. However, it is interesting to note that the majority of elder abuse reports are in fact substantiated after investigation (NCEA, 2006).
Nursing Facility Reform
In 1985, 5% of the older adult population resided in nursing facilities (1.5 million persons) (Collier, 1990). More than 1.6 million older adults and disabled persons receive care in approximately 16,800 nursing facilities across the United States (HCFA, 1998). CMS estimates that by the year 2010, 10.8% of the older adult population will reside in nursing facilities. Half of persons older than age 85 require long-term care.
During the 1970s, disturbing evidence emerged from studies, reports, and books suggesting widespread abuse of residents in the nation’s nursing facilities; furthermore, it was suggested that state and federal officials were lax in regulating the facilities (Hamme, 1991). In 1983 the DHHS contracted with the Institute of Medicine of the National Academy of Sciences to conduct a comprehensive study of federal and state regulations and policies for nursing facility certification and to formulate recommendations for legislative and agency action (Hamme, 1991). This study served as the impetus for nursing facility reform (Suffering in silence, 1993), and many of the recommendations of the study were adopted by the U.S. Congress when it enacted OBRA in 1987 (Hamme, 1991). Given the increasing challenges of meeting the needs of the aging population, Congress passed OBRA, a sweeping new form of legislation that brought about dramatic changes in the way nursing facilities in this country are run.
OBRA applies to all Medicare- and Medicaid-certified nursing facilities, including (1) beds in acute care hospitals certified to be used as long-term nursing care beds at times when they are not needed for acute care purposes (so-called swing beds), and (2) beds in acute care hospitals certified as separate units for Medicare-approved services (so-called distinct part units) (Collier, 1990). It is the most sweeping reform affecting Medicare and Medicaid nursing facilities since the programs began.
There is clear evidence that the health and safety of nursing facility residents has improved as a result of these tough regulations and sweeping reforms. Such improvements, among other things, include less overuse of antipsychotic drugs, a reduction in the inappropriate use of restraints, and a reduction in the inappropriate use of indwelling urinary catheters. Since 2001, CMS has increased the number of penalties levied on poor-quality nursing facilities (CMS, 2004).
However, CMS has also identified areas requiring greater regulatory oversight. Nursing facility surveys are too predictable and are rarely conducted on weekends or during evening hours. Some states rarely cite nursing facilities for substandard care, which is an indication that their inspections may be inadequate. Nursing facility residents continue to suffer from pressure ulcers and skin breakdown, malnutrition and dehydration, and various forms of abuse (CMS, 2004). For these reasons, new enforcement tools are being added to the regulatory oversight of the nations’ nursing facilities. Some of these additional measures are discussed in the following section.
Provision of Service Requirements
Quality of Care
Nursing facility residents must be assessed to identify medical problems, describe their capacity to perform daily life functions, and note any significant impairment in their functional capacity. In Medicare- and Medicaid-certified long-term care facilities, physicians evaluate residents at the time of admission, at 30 days and 90 days, when a change in condition occurs, and at 1 year. The government’s final regulations permitted certified nurse practitioners to certify the necessity for skilled nursing services for residents of nursing facilities (Vaca & Daake, 1998). A state-specified instrument must be used to conduct the assessment, which is based on a uniform data set, referred to as the Minimum Data Set (MDS), established by the DHHS.
The assessment is used to develop a written and comprehensive plan of care for each resident. The plan must quantify expected levels of functioning and must be reviewed quarterly. MDS assessment categories include resident background, daily pattern of activity, cognition, physical functioning, psychosocial status, health problems, and specific body systems. Certain responses on the MDS, called resident assessment protocols (RAPs), are designed to prompt more thorough assessment and evaluation of common clinical problems (Vaca & Daake, 1998).
Nursing assistants must be trained according to regulatory specifications and pass state-approved competency evaluations. They must receive classroom training before any contact with residents and must receive training in areas such as interpersonal skills, infection control, safety procedures, and resident rights (Hamme, 1991). They also must have 6 hours of in-service education each quarter to ensure ongoing competency (Vaca & Daake, 1998).
Resident Rights
A primary thrust of OBRA’s nursing facility reform provisions is to protect and promote the rights of residents to enhance their quality of life. Thus the legislation contains numerous requirements to ensure the preservation of a resident’s rights.5
OBRA imposed new disclosure obligations on nursing facilities to apprise residents of their rights; these require that residents be notified, both orally and in writing, of their rights and responsibilities and of all rules governing resident conduct. This notification and disclosure must take place before or up to the time of admission and must be updated and reviewed during the course of residents’ stays. Box 3–1 shows a sample of statements from OBRA’s resident bill of rights, as adapted from the Code of Federal Regulations (CFR).
Unnecessary Drug Use and Chemical and/or Physical Restraints
OBRA requires that nursing facility residents are free from unnecessary drugs of all types; from chemical restraints, commonly thought of as psychotropic drugs; and from physical restraints. Chemical restraints are drugs that are used to limit or inhibit specific behaviors or movements. Physical restraints are appliances that inhibit free physical movement, such as limb restraints, vests, jackets, and waist belts. Wheelchairs, geriatric chairs, and side rails can, in some circumstances, also be forms of physical restraint (Conely & Campbell, 1991).
Drug toxicities have been underestimated, and at times drugs have been used to meet the desires of nurses or other facility staff for “environmental control,” such as to settle residents down for sleep. The need to manage the environment can pose a genuine dilemma for nurses because certain resident behaviors such as yelling or wandering into other residents’ rooms can be disruptive. Such behaviors may cause family members to pressure nurses to quiet such residents or take other steps to stop the bothersome behavior. Nursing facility residents can be challenging in spite of a nursing staff’s intent to provide good care and to identify causes of residents’ disturbing behavior (Cooper, 1990). However, drug therapy may not be used for environmental control.
A facility is not absolved from regulatory liability by the mere presence of a physician’s written order for restraints of any kind. The nursing staff is professionally responsible for challenging questionable orders (Johnson, 1991). For example, statement three and its interpretation in the Code for Nurses identify the nurses’ responsibility to “safeguard the client,” and to act on any “questionable practice in the provision of health care.” Nurses should participate in the development of problem-solving procedures, established to provide constructive and effective ways to resolve disputes involving client care issues. Such procedures generally provide an avenue of communication that can be used to resolve questions or disagreements that arise between health care professionals. When a question or issue does arise, the nurse must institute the dispute-resolution procedure promptly.
Reductions in the use of physical restraints and almost universal use of CMS’s resident assessment system are indications that nursing facility reform is working (Suffering in silence, 1993). Recent studies indicate that antipsychotic drug use is down, resulting in economic benefits and improving the quality of life for nursing facility residents (CMS, 2004; Starr, 1992).
Urinary Incontinence
Urinary incontinence is one of three key reasons older adults enter nursing facilities (Suffering in silence, 1993). In fact, more than half of nursing facility residents are incontinent. Left untreated, this condition can lead to other physical problems such as infections and skin breakdown.
Nurses should be familiar with guidelines and procedures for management of incontinence, such as the Agency for Health Care Policy and Research Guidelines. (Refer to Chapter 28 for more information.) Charting should be specific to reflect the presence and extent of the problem of incontinence, and it should note the treatment plan that has been established and the effects of the treatment. From the OBRA perspective, behavioral approaches are preferable to more intense mechanical or chemical therapies.
Facility Survey and Certification
Written care plans and resident assessments are evaluated for their adequacy and accuracy, and the surveyors look for compliance with residents’ rights (Hamme, 1991). OBRA’s long-term care survey processes have a renewed emphasis on the outcome of resident care rather than mere paper compliance with regulatory requirements (Schabes, 1991).
By contractual arrangement with the DHHS, state survey agencies are authorized to certify the compliance of facilities. States are also required to educate facility staff regarding the survey process and are further authorized to investigate complaints of all types. On the basis of reports of persistent problems in nursing facilities, CMS will strengthen federal oversight of nursing facility quality and safety standards. These steps will include more frequent inspections for repeated offenders or facilities with serious violations; more inspections carried out on weekends and evenings; targeting of states with weak inspections systems; and requiring the assurance that state surveyors enforce the policies of CMS to sanction nursing facilities with serious violations (CMS, 2004).
Enforcement Mechanisms and Sanctions
The DHHS and the states may apply sanctions or penalties against a facility for failure to meet requirements and standards. Such sanctions can include civil monetary penalties, appointment of a temporary manager to run a facility while deficiencies are remedied, or even closure of a facility or transfer of residents to another facility (or both). In addition, CMS plans to publish individual nursing facility survey results and violation records on the Internet to increase accountability and flag repeated offenders for families and the public (CMS, 2004).