Legal and Ethical Issues

Chapter 3


Legal and Ethical Issues


Sue E. Meiner, EdD, APRN, BC, GNP



Learning Objectives


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.



There is reason to be concerned about how the health needs of older adults will be met. Their unique characteristics and needs present meaningful questions of legal and ethical significance. Older adults depend on the health care system to deliver the care that optimizes their health status and functional capabilities. Their quality of life often depends on the type and quality of nursing care they receive. This chapter focuses on legal concerns of nurses who care for older adults, and the ethical issues that may be encountered.



Professional Standards: Their Origin and Legal Significance


Health care providers have a general obligation to live up to accepted or customary standards of care, which may be determined on either a regional or a national basis. Nurses are responsible for providing care to the degree, skill, and diligence measured and recognized by applicable standards of care. The duty of care increases as clients’ physical and mental conditions and ability for self-care decline.


Nursing standards of practice are measured according to the expected level of professional practice of those in similar roles and clinical fields. For example, the standards of practice of a gerontologic nurse practicing at the generalist level would be measured against the practice of other nurse generalists practicing in the area of gerontology. The advanced practice gerontologic nurse, who has at least a master’s degree in an applicable field, would be expected to conform to standards established for similarly situated advanced practice nurses.


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).


Federal and state statutes require nursing facilities to have written health care and safety policies, and these have been used successfully to establish a standard of care in court cases. Bylaws and internal rules and policies also help establish the standard of care in an organization, although, depending on the circumstances, their importance may vary. In any event, it is important for nurses to be aware of their organization’s policies; failure to follow “your own rules” clearly poses a liability risk—both to the nurse and the organization.



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 U.S. Department of Health and Human Services (DHHS) promulgated regulations for the Medicare and Medicaid programs until July 1, 2001. At that time the Health Care Financing Administration (HCFA) became the Centers for Medicare and Medicaid Services (CMS). The restructured agency aims to increase emphasis on responsiveness to the beneficiaries and providers, and quality improvement is one of the goals. Then Health and Human Services Secretary Tommy G. Thompson made the announcement on June 14, 2001, “We’re making quality service the number one priority in this agency.”


Two levels of care are generally associated with nursing facilities: intermediate and skilled. Skilled nursing facilities (SNFs) provide technical and complex care and offer more skilled levels of professional staff. Medicare pays only for skilled care, which includes nursing, physical therapy, occupational therapy, and speech therapy, for Medicare-insured persons in long-term care facilities. Medicaid pays for both intermediate and skilled care for indigent persons. Intermediate care is custodial and is supervised by professional nurses.


The Omnibus Budget Reconciliation Act of 1987 (OBRA) refers to SNFs only in relation to Medicare facilities and has merged the distinctions skilled and intermediate into the single term nursing facility for Medicaid purposes (as of OBRA’s effective date, October 1, 1990). For survey purposes a single set of survey requirements is used. However, these designations are used for reimbursement and survey purposes only and are presented here to assist in understanding what is meant by the terms in connection with reimbursement or survey activities.


Survey and certification procedures, and the process by which CMS evaluates and determines whether a provider is in compliance with the Medicare and Medicaid requirements, are the responsibilities of the Health Standards and Quality Bureau within CMS.


Continued public policy interest in the welfare and quality of life of older adults in the United States is expressed in other legislation such as the Older Americans Act (OAA), which requires states to maintain a minimum bureaucratic system to perform various services for older adults. The objectives of the OAA are to secure basic rights for all older adults in the United States. It defines older adults as those older than age 60.


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)


Recent changes in federal law now give additional, though limited, protections to individuals and their family members when they need to buy, change, or continue their health insurance. These important laws can affect the health benefits of millions of working Americans and their families. It is important that nurses understand these new protections, as well as laws in their state, to help them make more informed choices for themselves or to inform their patients of the options available. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) may:



Among the specific protections of HIPAA, it:



There are several misunderstandings about what HIPAA provides. Note that:




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.


In addition, as older adults’ abilities to manage their affairs are compromised, the necessity of turning the management of certain activities over to others may also open the door to mistreatment. The legal recognition of this vulnerability is reflected in laws enacted specifically to protect 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:



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).


Nurses must be alert to signs and symptoms of abuse. Signs of physical abuse may be visible, such as bruises, wounds, or fractures. They may also be less apparent, such as an elder’s report of being hit or mistreated or a sudden change in behavior. Sexual abuse may be detectable by signs such as bruises in the genital area or unexplained vaginal bleeding. But other forms of abuse such as the taking of pornographic photographs may be more difficult to detect. Signs of neglect may include living in unclean conditions or being malnourished or dehydrated. In addition, the nurse should be alert to signs of financial or material exploitation such as the unexplained disappearance of funds or valuable possessions.


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).


Elder abuse laws levy criminal penalties against those who commit harmful acts against older adults. Many states’ laws enhance the penalties for criminal offenses against older persons, such as violent or property-related offenses, and some outlaw any acts that victimize older adults (e.g., see Connecticut General Statutes Annals. §46a-15). These laws typically apply to the abuse of older adults in the community.


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


For the purposes of these types of statutes, some states define older adults as those age 60 or older. It is important for nurses to know the legal requirements relating to the abuse of older adults for the state in which they practice.


Most states designate certain professionals or other caregivers as “mandated reporters.” This means that the mandated reporter is required by law to report suspected cases of abuse, neglect, or exploitation. Failure to report as required under this law can result in imposition of civil and/or criminal penalties.


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).


In most care settings, nurses are mandated reporters. To be responsive to this legal obligation and because there is great variation among the states, nurses should determine the specific reporting requirements of their jurisdictions, including where reports and complaints are received and in what form they must be made.


Nurses must be aware at all times of the responsibility to respect and to preserve the autonomy and individual rights of older adults. All people, including older adults, have the right to decide what is to be done to them, as well as the right to exercise maximum control of their personal environments and living conditions. The nurse’s responsibility in this regard emanates from both legal and professional standards.


The fact of ongoing legislative responses to the identification and preservation of these rights underscores this point. The nurse is often the health professional closest to older clients and therefore may be in the best position to communicate and understand their wishes. This presents both an unequaled opportunity and a legally recognizable and indisputable responsibility to advocate on their behalf. Thus the need to be legally informed and professionally conscientious is greater than ever.



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.



OBRA’S Three Major Parts


OBRA provisions are divided into three parts: (1) provision of service requirements for nursing facilities, (2) survey and certification processes, and (3) enforcement mechanisms and sanctions.


The provision of service requirements for nursing facilities includes resident assessments, preadmission and annual screening of residents, maintenance of minimal nurse staffing levels, required and approved nurse aide training programs and competency levels, professional social worker services in facilities with 120 or more beds, and the important focus on specifying and ensuring resident rights.


The survey and certification process was substantially revised with the enactment of OBRA. New types of surveys were established to evaluate facilities. In brief, each facility is subject to a standard annual survey. Any change in facility management or ownership is further evaluated by a “special” survey. If any survey suggests that care may be substandard, the facility may be subject to a more detailed “extended” survey. States are also evaluated for the effectiveness of their survey process through a “validation” survey. Furthermore, the federal authorities may make an independent and binding determination of a facility’s compliance through a “special compliance” survey.


OBRA also brought a new range of enforcement mechanisms and sanctions. Thus a number of corrective measures can be applied to repair deficiencies, based on the severity of the risk to residents. These three OBRA provisions are discussed further in the following sections.


Overall the regulations focus on the quality of life of nursing facility residents and emphasize their individual rights. OBRA has created a new regulatory environment by empowering residents, giving them a greater say in these quality of life issues (Salkin, 1991).



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).


A similar uniform approach to assessment of adult home care clients, known as the Outcome and Assessment Information Set (OASIS), is being tested in a number of locations across the country. The goal of this tool is to provide a set of essential data items necessary for measuring client outcomes that have utility for such purposes as outcome monitoring, clinical assessment, and care planning. CMS is likely to issue new rules relating to home health agencies that include the required collection of OASIS data.


The assessment and planning of care for nursing facility residents is a most important role for the professional nurse. As can be seen from this discussion of nursing facility reform, it is a central point for determining the care and services that particular residents will need. Careful assessment and planning are time-consuming and also require the professional nurse to be skilled and knowledgeable in carrying out these functions.


The advent of OBRA and nursing facility reform has ushered in a new phase of professional accountability. It has increased the demands on nursing time and performance, has forced nursing facilities to change the structure of their operation, and has resulted in a different image of what nursing facilities are and how they care for their residents.


Medicare SNFs and Medicaid nursing facilities must have licensed nursing services available 24 hours a day, 7 days a week. A registered professional nurse must be on duty at least 8 hours a day, 7 days a week.


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).



Most facilities have developed a contract for new residents (or a family member or other responsible person) to sign at the time of admission. This is usually called the admission agreement. This agreement sets forth the rights, obligations, and expectations of each party. It is a good way to inform residents of a facility’s rules, regulations, and philosophy of care. This is a practical way to meet OBRA’s notification and disclosure requirements.


As with any agreement, it can only be a valid contract if the parties entering into the agreement are capable of understanding its provisions. If a resident is not capable of doing this, then a family member or other responsible person may sign on the resident’s behalf. The laws of the particular state should be explored to determine who has standing to contract on behalf of the resident.


OBRA only allows a facility to transfer or discharge residents in the following situations: (1) if the facility cannot meet the residents’ needs, (2) if their stay is no longer required for their medical condition, (3) if they fail to pay for their care as agreed to, or (4) if the facility ceases to operate. These provisions are designed to establish the basic right of a resident to remain in a facility and not be transferred involuntarily unless one of these conditions exists; they also ensure that a resident has been given proper notice with the opportunity to appeal the decision. This was, in part, a response to situations in which older residents of nursing facilities were “ousted” without notice and perhaps without regard to the detrimental effects (both physical and emotional) of being uprooted from familiar surroundings.


The requirement for a bill of rights for residents is not an entirely new item on the landscape. Many states have had such provisions in their facility licensure statutes for many years. Medicare and Medicaid regulations have also included resident rights requirements for some time. OBRA strengthened and enhanced the importance of these requirements by enforcing them as part of the facility survey process. Although the specific contents of resident’s rights laws vary considerably from state to state, both the state and federal contents have some similarities. Both are concerned with physician selection, medical decision making, privacy, dignity, the ability to pursue grievances, discharge and transfer rights, and access to visitors and services.



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).


OBRA’s guidelines for unnecessary drug use pertain to the use of antipsychotics, benzodiazepines, other anxiolytic and sedative drugs, and hypnotics. As of this writing, CMS has not developed guidelines concerning antidepressant use because it is believed that depression is undertreated and underrecognized in nursing facilities.


The drug use guidelines are based on the principles that certain problems can be handled with nondrug interventions and that such forms of treatment must be ruled out before drug therapy is initiated. Furthermore, when used, drugs must maintain or improve a resident’s functional status.


OBRA’s guidelines detail doses but do not set maximum dosage limitations. The dosage detailing is a way to draw attention to the need for comprehensive assessment and review of drug use. Surveyors review the duration of drug therapy regimens and look for documentation of indications for the use of the drug therapy. Nurses should also carefully document observed effects of drug therapy.


This is an area in which the nurse should exercise skill and leadership by working with others on the resident’s care team to ensure that the resident is not overmedicated or unnecessarily medicated. For example, the nurse can work with the interdisciplinary care team to plan nondrug interventions. The nurse is also in a position to inform a resident’s physician about OBRA’s unnecessary drug use guidelines. Not only may this be new information for the physician, but it may also provide a sound explanation for the physician to use when speaking with a resident’s family members who may be requesting drug interventions. In fact, the nurse is in the best position to work with residents and family to provide information and reinforcement about this important approach to care.


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.


Physical restraints may be used only when there are specific medical indications and when a physician has written a specific order for their use. The order must include the type of restraint, the condition or specific behavior for which it is to be applied, and a specified time or duration for its use. Orders for a restraint must be reevaluated and, if use is to be continued, periodically reassessed.


The nurse must carefully document the behavior or condition that led to the order for a restraint and monitor the resident’s ongoing condition, noting responses to the application of a restraint and changes in condition. When physical restraints are used, the resident must be observed and the restraints released at regular intervals. Records documenting these activities must be kept.


OBRA guidelines require that antipsychotic drugs be used at the minimum dose necessary. This minimization must be ensured through careful monitoring and documentation by the staff to identify why a behavioral problem may exist and whether the antipsychotic treatment is actually effecting a change in the target symptom.


Residents receiving an antipsychotic drug must have an indication for the use of the drug based on one of 12 conditions. The conditions include schizophrenia; schizoid-affective disorder; delusional disorder; acute psychosis; mania with psychotic mood; brief reactive psychosis; atypical psychosis; Tourette’s syndrome; Huntington’s chorea; short-term symptomatic treatment of nausea, vomiting, hiccups, or itching; or dementia associated with psychotic or violent features that represent a danger to the clients or others.


Reasons for the use of antipsychotic drugs must be documented in the physician’s orders and in the resident care plan. They should not be used for behaviors such as restlessness, insomnia, yelling or screaming, inability to manage the resident, or wandering.


OBRA mandates a 25% reduction in dose trial, unless the drug has been tried previously and has resulted in decompensation of the resident or the resident has one of the 12 conditions listed above. A “reduction in dose trial” consists of a reduction in the dose of the drug coupled with observations to note the return of symptoms or any adverse side effects. The dose is gradually increased until the optimum effectiveness in treatment response and the minimum necessary dose are achieved.


The physician’s order must include the following specific information: (1) the reasons for the use of antipsychotic drugs, including medical indications; (2) the target behaviors that the drug therapy is intended to treat; (3) the goals of therapy; and (4) common side effects. These notations must also be entered in the resident’s care plan. The observations and charting made by the nurse must also address these specific points.


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).


Nurses have been successful in employing practices directed toward avoiding the use of chemical or physical restraints. Some of these techniques are companionship; increased client supervision; meeting physical needs such as toileting, exercise, or hunger; modifying staff attitudes; and other psychosocial approaches. Again, it can be seen that nurses are in a unique position to positively affect the quality of life of institutionalized older adults. Nurses should continue to educate others about these behavior management techniques.



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.


Because this is a prevalent condition and one that has implications for the quality and enjoyment of life, it can be expected to remain a major area of regulatory scrutiny. Under OBRA, nursing facilities are required to include incontinence in the comprehensive assessment of a resident’s functions and to provide the necessary treatment.


Furthermore, state Division of Aging surveyors are being instructed to focus on this problem by evaluating its occurrence in the nursing facilities they survey and assessing the extent to which residents are in bladder training programs.


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


CMS is determined to see that every nursing facility implement and comply with the letter and spirit of OBRA’s requirements. This determination is enforced through a process of surveying facilities, and the decision of CMS is based on the results of the survey, which certifies a facility’s compliance with OBRA’s laws and regulations.


OBRA’s enactment created a new survey process. In general, the standard survey is conducted to review the quality of care by evaluation of criteria such as medical, nursing, and rehabilitative care; dietary services; infection control; and the physical environment.


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).


Surveys are conducted by a multidisciplinary survey team of professionals, including at least one registered professional nurse. Survey participants include facility personnel, residents and their families, and the state’s long-term care ombudsman. (For more on ombudsman, refer to the discussion of the OAA earlier in this chapter.) Surveyors interview residents and ask them about facility policies and procedures. They observe staff in the performance of their duties, and staff may be asked to complete forms required by the survey team.



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).


The sanctions applied must be appropriate to the facility deficiency. This often depends on whether an immediate threat to the health and safety of residents exists. Sanctions may also be increased if there are repeated or uncorrected deficiencies. Deficiencies are analyzed based on the scope of the deficiency—that is, whether it constitutes a pattern of activity or whether it is an isolated or sporadic occurrence—and the severity of the deficiency—that is, the extent to which it presents a threat to the safety and welfare of residents. To assist in analysis, the scope and severity factors are laid out on a “grid” and sanctions are applied based on the result of this analysis.


It is important for the nurse to understand that officials authorized by the state or federal agencies that oversee the operation of nursing facilities (or any licensed health care institution or setting) may enter and review activities at any time. They are not required to announce the visit in advance (in fact, OBRA regulations specifically prohibit this for the annual standard survey), and the nurse must respond to their questions and requests for information and records.


The director of nursing has an important role in the survey process. If requested to do so by the surveyor, the director may participate in rounds or other activities of the surveyor; the director is also present at a closing conference in which the overall results of the survey are discussed. Often, the surveyors follow up the visit by telephone, or they may return for additional visits to a facility if further information is needed.


A written report of the survey is ultimately sent to the facility, and if there are deficiencies or violations, the director of nursing and other members of the nursing staff may participate in formulating a plan of correction to submit to the regulatory officials.


In the course of an inspection a surveyor may find information suggesting that the practice of a licensed nurse may have been improper or may not have met the proper standard of care. For example, a particular nurse may have a high incidence of medication errors or may not have taken proper action when a client experienced a change in condition. In such cases the surveyor may forward the record showing the relevant findings to the appropriate state agency or board for review of the nurse’s practice, requesting a determination of whether the nurse may have violated the state’s nurse practice act. The board may find no basis for further action and not proceed, or it may require a hearing or other measures that could lead to disciplinary action. Disciplinary action could range from a reprimand, to required educational remediation, to suspension or revocation of the nurse’s license. This again underscores the need for nurses to be diligent and conscientious in their professional practice and to remember that they will be held accountable for their individual performance.

Nov 26, 2016 | Posted by in NURSING | Comments Off on Legal and Ethical Issues
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