Legal Issues in Nursing

Practice Issues
Documentation

Margaret Decker MS, RN, CNE

N320
New York State Nursing Guide
to Practice
Abandonment in Nursing
Administration of IV Anesthetic Agents by Non-Anesthetist
Registered Nurse for the
Purpose of Sedation and Anesthesia
Administration of Medication by Unlicensed Personnel
AICD/Pacemaker Interruptions with a Magnet during
Colonoscopy Procedures
The Differentiated Scope of Practice of Licensed Practical
Nurses (LPNs) and Registered
Professional Nurses (RNs)
Intraosseous Fluid and Medication Administration
Intravenous Monoclonal Antibodies
New York State Nursing Guide
to Practice
Nurse Practitioner
Approved Protocol Texts
Clarifying Information for Nurse Practitioners
Collaborative Practice Agreement (Sample)
The Practice of IV Therapy by Licensed Practical Nurses in Acute Care
Settings
The Practice of IV Therapy by Licensed Practical Nurses in Long Terms Care
Settings
SED/OMRDD Memorandum of Understanding for RN Nursing Supervision
Standing Orders or Protocols
Task Force on Provision of Services for Chronic Outpatient End State Renel
Disease
(ESRD) Facilities
New York State Nursing Guide
to Practice
Ethical Practice
American Nurses Association Code of Ethics
Whistleblower Protection
Professional Misconduct
Reporting Professional Misconduct or Unlicensed
Practice
Professional Assistance Program
Page Reference to Laws, Rules and Regulations
Laws, Rules and Regulations Specific to Nursing
Laws, Rules and Regulations Applicable to All
Professions
Abandonment

Abandonment results when the nurse-patient

relationship is terminated without making
reasonable arrangements with an appropriate
person so that nursing care by others can be
continued.
Abandoning or neglecting a patient or client under
and in need of immediate professional care,
without making reasonable arrangements for the
continuation of such care, or abandoning a
professional employment by a group practice,
hospital, clinic or other health care facility,
without reasonable notice and under
circumstances which seriously impair the delivery
of professional care to patients or clients.
Abandonment examples

An RN or LPN accepts an assignment for patient care

and then leaves the facility without transferring patient
care to another qualified individual, when this would
seriously impair the delivery of professional care;
An RN leaves the operating room during a surgical case
without transferring patient care to another qualified
individual, when this would seriously impair the
delivery of professional care;
An RN or NP withdraws from a contractual relationship
with a patient to provide home health, counseling, daily
nursing care or another similar service and fails to
provide sufficient notice to the patient.
Differentiated Scope of Practice
between RN and LPN

Section 6902, cited above, does not include

nursing diagnosis within the scope of
practice of Licensed Practical Nurses.
Thus, Licensed Practical Nurses in New
York State do not have assessment
privileges; they may not interpret patient
clinical data or act independently on such
data; they may not triage; they may not
create, initiate, or alter nursing care goals
or establish nursing care plans.
LPN scope of practice

Licensed Practical Nurses function by law in a

dependent role at the direction of the RN or
other select authorized health care
providers. Under such direction, Licensed
Practical Nurses may administer medications,
provide nursing treatments, and gather
patient measurements, signs, and symptoms
that can be used by the RN in making
decisions about the nursing care of specific
patients. However, they may not function
independent of direction.
The Practice of IV Therapy by Licensed
Practical Nurses in Acute Care Settings

Education Law does not permit LPNs to make any

patient assessments (interpret or evaluate clinical
data). In the opinion of the State Board for
Nursing, the practice of intravenous therapy by
LPNs in acute care settings requires RN
supervision, that is, the RN responsible for the
LPN must be assigned to the patient care unit at
all times when intravenous therapy is being
provided by the LPN. The RN must document, at
least every shift, assessment of the patient's
condition relative to the intravenous therapy.
The Practice of IV Therapy by Licensed Practical Nurses in
Long Term Care Settings

Education Law does not permit LPNs to make any

patient assessments (interpret or evaluate clinical
data). In the opinion of the State Board for
Nursing, the practice of intravenous therapy by
LPNs in long term care settings requires RN
supervision, which must be on-site at all times
that IV therapy is being provided by the LPN (long
term care facilities must follow acute care
guidelines on sub-acute units). The RN must
document, at least every shift, assessment of the
patient's condition relative to the intravenous
therapy
Standing orders or protocols

Non-patient specific standing orders for the

administration of immunization, anaphylactic agents,
purified protein derivative tests and human
immunodeficiency virus tests are the only legal
circumstance in which orders can be provided for a
given patient population with whom an authorized
provider has no treatment relationship. The use of non-
patient specific standing orders or non-patient specific
standing protocols for clients in camps, college
infirmaries, jails, hospitals, nursing homes, and
occupational health facilities, for example, has no legal
standing, and may result in a charge of unprofessional
conduct against the RNs executing such orders.
Mandatory Overtime Law 2008

This new law will prohibit health care facilities from requiring
nurses to work more than their regularly scheduled work hours,
but does not place a specific cap on the number of hours that can
be worked per day or week. The bill contains exceptions to the
mandatory overtime prohibition for the following situations:

Natural or other types of disasters that increase the need for

nursing services,
A federal, state or county declaration of emergency,
A nurse engaged in an ongoing medical or surgical procedure,
When necessary to provide safe patient care where no other
alternative staffing is available; and
A nurse voluntarily agrees to work overtime.
Whistleblower Protection

In 2002, legislation was passed referred to as

Whistleblower Protection, which protects
employees, who provide health care services,
from retaliatory action by their employers
when the employee discloses or refuses to
participate in activities s/he believes
constitutes improper quality of patient care.
Professional Misconduct

Professional misconduct is defined in Education Law and in

the Rules of the Board of Regents. Professional misconduct
includes the following:
Engaging in acts of gross incompetence or gross negligence
on a single occasion, or negligence or incompetence on more
than one occasion
Permitting or aiding an unlicensed person to perform
activities requiring a license
Refusing a client or patient service because of race, creed,
color, or national origin
Misconduct

Practicing beyond the scope of the profession

Releasing confidential information without authorization
Being convicted of a crime
Failing to return or provide copies of records on request
Being sexually or physically abusive
Abandoning or neglecting a patient in need of
immediate care
Performing unnecessary work or unauthorized services
Practicing under the influence of alcohol or other drugs
Penalties for misconduct

A range of penalties that includes censure and

reprimand, fines (up to $10,000 for each violation),
suspensions and/or probationary terms may be
imposed on licensees who have committed
misconduct. The Board of Regents takes final
action on the most serious cases of misconduct. In
severe cases of misconduct, the Regents may
revoke the professional's license. Information on
uncontested determinations in which a licensee
has been assessed a fine for committing an
infraction of a minor and technical nature are
available by phone
Professional assistance

OP's Professional Assistance Program allows licensees

who abuse alcohol or other drugs to surrender their
licenses voluntarily and confidentially while progressing
through an acceptable course of treatment; it is
available to licensees who have not harmed clients.
Successful completion of the program may act as an
alternative to disciplinary action
(SPAN - Statewide Peer Assistance for Nurses)

OP also investigates allegations of illegal (unlicensed)

practice in all 50 licensed professions, including
medicine. Practicing a profession without a license and
current registration is a felony in New York State
Malpractice

Malpractice is negligence applied to the acts of a

professional.
Malpractice occurs when a professional fails to act
as a reasonably prudent professional would have
acted in similar circumstances.
In making a determination of malpractice, a
nurses actions will be judged against the nursing
standard of care. This is a higher standard of care
than a reasonably prudent layperson would be
expected to uphold. This standard represents the
minimum that would be expected of a nurse in a
similar circumstance.
Investigative process
Facility investigation

NYS Department of Health

NYS Attorney Generals Office

NYS Office of Professional Discipline

State Bureau of Narcotics

Federal Drug Enforcement Agency

Federal Centers for Medicare/Medicaid Services

Patient rights

Patient Abuse
Verbal
Physical
Mental
Misappropriation of property

NYS DOH Hotline

Mandatory reporting
Plan of correction

1. Correcting the harm to the individual affected

2. Ensuring the same harm is not occurring to others

3. What is the plan to ensure the deficient practice

is not going to be done by others?

4. How is the deficient practice going to be

monitored in an ongoing manner through quality
assurance plan?