Transcript Federal Law

Legal Issues in Health Care
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HEALTH CARE LAWS
DEDE CARR, BS, LDA
KAREN NEU, MSN, CNE, CNP
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Health Care Laws
3
Competency:
1. Explain the laws related to health care and their
influence on the delivery system.
A.
B.
C.
D.
E.
Define common legal terms.
Name the federal laws related to Healthcare.
Discuss state laws that relate to healthcare.
Explain why everyone should have an advanced directive
whether they are ill or not.
Define differences between certification, registration and
licensure.
Vocabulary List
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 Review the Vocabulary List found on the Instructor
Resource and Course Outline.
Quotes
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Good people do not need laws to tell them to act responsibly,
while bad people will find a way around the laws. Plato
It may be true that the law cannot make a man love me, but it
can keep him from lynching me, and I think that's pretty
important.
Martin Luther King, Jr.
Hatred does not cease through hatred at any time. Hatred
ceases through love. This is an unalterable law. Buddha
When the President does it, that means that it is not illegal.
Richard Nixon
Law
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 Law can be defined as “those rules made by humans
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which regulate social conduct in a formally binding
manner” (Bernzweig, p. 3, as cited in Ramont & Niedringhaus, p. 28).
It provides a framework for establishing which
healthcare worker actions in the care of clients are legal.
It differentiates the healthcare worker’s responsibilities
from those of other healthcare professionals.
It helps establish the boundaries for independent nursing
actions.
It assists in maintaining a standard of healthcare practice
by making healthcare workers accountable under the
law.
(Ramont & Niedringhaus, p. 28)
Laws
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Health care facilities operate under federal, state and
local laws.
The first of these laws that will discussed are the
federal laws.
These laws are listed on the following slides with a
brief explanation of each.
Federal Law
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 Federal law is the body of law created by
the federal government of a country.
 A federal government is formed when a group of
political units, such as states or provinces join
together in a federation, surrendering their
individual sovereignty and many powers to
the central government while retaining or reserving
other limited powers.
 Two or more levels of government exist within an
established geographic territory. The body of law of
the common central government is the federal law.
(Wiley & Sons, Inc.)
Federal Law
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 Federal law: A body of law at the highest or
national level of a federal government, consisting of
a constitution, enacted laws and the court decisions
pertaining to them.
(Wiley & Sons, Inc.)
 The federal law of the United States consists of the
United States Constitution, laws enacted by
Congress, and decisions of the Supreme Court and
other federal courts.
(Wiley & Sons, Inc.)
Federal Laws
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1.
2.
3.
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5.
6.
Equal Employment Opportunity Commission
(EEOC)
Equal Pay Act
American Disability Act (ADA)
Patient Self-Determination Act (PSDA)
Omnibus Budget Reconciliation Act (OBRA)
Health Insurance Portability & Accountability Act
(HIPAA)
Equal Employment Opportunity
Commission
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Equal Employment Opportunity Commission (EEOC)
 The U.S. Equal Employment Opportunity Commission
(EEOC) is responsible for enforcing federal laws that make
it illegal to discriminate against a job applicant or an
employee because of the person's race, color, religion, sex
(including pregnancy), national origin, age (40 or older),
disability or genetic information.
 Most employers with at least 15 employees are covered by
EEOC laws (20 employees in age discrimination cases).
Most labor unions and employment agencies are also
covered.
 It is also illegal to discriminate against a person because
the person complained about discrimination, filed a charge
of discrimination, or participated in an employment
discrimination investigation or lawsuit. (U.S. EEOC, n.d.)
Equal Employment Opportunity
Commission (EEOC)
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 The law forbids discrimination and retaliation when it comes to
any aspect of employment, including hiring, firing, pay, job
assignments, promotions, layoff, training, fringe benefits, and
any other term or condition of employment.
Sex-Based Discrimination Harassment
 It is unlawful to harass a person because of that person’s sex.
Harassment can include “sexual harassment” or unwelcome
sexual advances, requests for sexual favors, and other verbal or
physical harassment of a sexual nature.
 Harassment does not have to be of a sexual nature, however,
and can include offensive remarks about a person’s sex. For
example, it is illegal to harass a woman by making offensive
comments about women in general. (U.S. EEOC)
Equal Employment Opportunity
Commission
(EEOC)
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 The EEOC is a governmental agency that handles sexual
harassment complaints that cannot be settled in the
workplace.
 Sexual harassment is a violation of the individual’s
rights and a form of discrimination.
 In 1987, the law prohibiting sexual discrimination was
clarified to apply to all educational and employing
institutions receiving federal funding.
 The EEOC defines sexual harassment as “unwelcome
sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature” occurring
in the following circumstances: [See following slides]
(Ramont & Niedringhaus, p. 37)
Equal Employment Opportunity
Commission (EEOC)
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EEOC defines sexual harassment occurring:
 When submission to such conduct is considered,
either explicitly or implicitly, a condition of an
individual’s employment.
 When submission to or rejection of such conduct is
used as the basis for employment decisions affecting
the individual (i.e., quid pro quo: job privileges or
advancement on granting sexual favors).
 When such conduct interferes with an individual’s
work performance or creates an “intimidating,
hostile, or offensive working environment.”
(Ramont & Niedringhaus, p. 37)
Equal Employment Opportunity
Commission (EEOC)
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 Other situations involving discrimination that the
EEOC handles are age; religion; sex-based
discrimination; race/color discrimination;
pregnancy, national origin, disability (covered under
ADA); and genetic information. (U.S. EEOC)
 Wrongful discharge, such as when someone is fired
that should not have been fired.
 Due process of employee rights is defined by the
employer & the union if needed.
What is due process?
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Due process is one of the most important rights that
employees have in the workplace because it affects all of their
other rights.
It refers to the right of an impartial and fair hearing regarding
employers decisions and procedures.
This may also take place when the employer decides to get rid
of someone and get them fired.
 Due Process has effective mechanisms and procedures for
ensuring that there is justice among employees when
disciplinary action is taken against them.
 Managers usually define due process as the employee's right
to be heard through the employers own complaint procedure.
It is important for employees to know and follow the grievance
or complaint due process as outlined in the handbook.
(Fighel)
Due Process
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However, proactive employers will also incorporate the
following principals or rights in their interpretation of
due process:
The right to appeal disciplinary action.
The right to know job expectations and the consequences
of not fulfilling those expectations.
3. The right to consistent & predictable management action
for the violation of rules.
4. The right to progressive discipline.
 So basically you, as an employee, have the right to present
your position during any disciplinary action at your job.
 This is just one of the few rights that you have everyday
when you go to work.
1.
2.
Equal Pay Act
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 The Equal Pay Act requires that men and women in
the same workplace be given equal pay for equal work.
The jobs need not be identical, but they must be
substantially equal.
 All forms of pay are covered by this law, including
salary, overtime pay, bonuses, stock options, profit
sharing and bonus plans, life insurance, vacation and
holiday pay, cleaning or gasoline allowances, hotel
accommodations, reimbursement for travel expenses,
and benefits.
 If there is an inequality in wages between men and
women, employers may not reduce the wages of either
sex to equalize their pay.
(U.S. EEOC, n.d.)
American with Disabilities Act (ADA)
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American with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA), passed by U.S.
Congress in 1990 and fully implemented in 1994, prohibits
discrimination on the basis of disability in employment,
public services, and public accommodations.
Purposes of the Act
 To provider a clear and comprehensive national mandate for
eliminating discrimination among individuals with
disabilities.
 To provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with
disabilities.
 To ensure that the federal government plays a central role in
enforcing standards established under the act.
(Ramont & Niedringhaus p. 36)
American with Disabilities Act (ADA)
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 The ADA prohibits discrimination and ensures equal
opportunity for persons with disabilities in
employment, state and local government services,
public accommodations, commercial facilities, and
transportation
 The Americans with Disabilities Act (ADA) is the
most comprehensive civil rights legislation adopted to
prohibit discrimination against people with
disabilities.
 Public and private businesses, state and local
government agencies, private entities offering public
accommodations and services, transportation and
utilities are required to comply with the law.
(Center of Psychiatric Rehabilitation, n.d.)
Patient Self-Determination Act
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Patient Self-Determination Act
Congress passed the Patient Self-Determination Act
(PSDA) in 1990. The regulations were implemented in
December 1991.
This act gives patients the right to make choices and
decisions about the types and extent of medical care they
wish for themselves.
Patients can specify if they want to accept or refuse specific
medical care.
They can also identify a legal representative for urgent
healthcare decision purposes. Then if they become unable
to make decisions due to illness, the patients' wishes have
been clearly documented at an earlier point.
(Northern Virginia Community College, n.d.)
Omnibus Budget Reconciliation Act
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Omnibus Budget Reconciliation Act
The Federal Nursing Home Reform Act or OBRA
’87 creates a set of national minimum set of standards
of care and rights for people living in certified nursing
facilities.
 These minimum federal health and care requirements
for nursing homes are to be delivered through variety of
established protocols within nursing homes and
regulatory agencies.
 OBRA set in motion forces that changed the way state
inspectors approached all their visits to nursing homes.
(Turnham, n.d.)
Omnibus Budget Reconciliation Act
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Omnibus Budget Reconciliation Act
 OBRA regulations require that “each long-term
facility must provide each resident with a nourishing,
palatable, well-balanced diet that meets the daily
nutritional and special dietary needs of each
resident” CFR (483.35), and that
 “Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental,
and psychosocial well being, in accordance with the
comprehensive assessment and plan of care” CFR
(483.25).
(Minnesota Department of Health)
Omnibus Budget Reconciliation Act
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 The Federal government passed legislation in 1987
entitled the Omnibus Budget Reconciliation Act (OBRA).
 One of the provisions of that legislation was the
registration of nurse aides.
 A Nurse Aide is defined as any individual providing
nursing or nursing-related services to residents in a long
term care facility who is not a licensed health
professional, a registered dietitian or a volunteer who
provides such services without pay.
 Nurse Aides must complete a training program and pass
a knowledge test and a clinical skills test before they can
be registered/certified in states.
Patient’s Bill of Rights
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 In 1973, the American Hospital Association (AHA)
published “A Patient’s Bill of Rights” to promote the
rights of hospitalized clients.
 The publication was revised in 1992. AHA & OBRA
guarantee that all clients have the right to:
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Considerate & respectful care
Consideration of privacy for clients
Confidentiality of all records and communications regarding
care
The right to refuse a treatment or plan of care
The right to make a statement such as a living will, which
should be followed by the agency as permitted by law.
(Ramont & Niedringhaus, p. 113)
Patient’s Bill of Rights
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The AHA bill of rights states that clients have the right
to:
 Review all of their medical records and have them explained
 Receive requested care and services, provided they are reasonable
 Be informed of any business arrangements among institutions or
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people involved in their care
Be informed of resources that can be used to resolve a dispute or
grievance
Be informed of hospital policies and procedures that relate to client
care, treatment, & responsibilities
Be informed of hospital charges and available payment methods
Refuse to participate in any research study
Expect reasonable continuity of care
Have options explained when hospital care is no longer appropriate
(Ramont & Niedringhaus, p. 113
Patient’s Bill of Rights
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 The Patient’s Bill of Rights, by federal law, must
be explained verbally and signed by the client before
care can be provided.
 Verification of compliance is an important function
at the time of admission of the patient.
 The client should be asked about advance directives
(i.e., not to be resuscitated in the event of cardiac
arrest), and this information must be in the client’s
medical record.
 A copy of the Patient’s Bill of Rights must be
posted on the wall in every facility.
(Ramont & Niedringhaus, pp. 113-114)
Health Care Bill of Rights
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 The following is an example for the state of MN
 Access the website to review the law:
Minnesota's Health Care Bill of Rights
to learn about patient’s rights while in a healthcare
facility in MN.
Resident’s Bill of Rights
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OBRA guarantees the rights of residents in nursing
homes.
For example:
 Access the website to learn of the rights required by
Minnesota Law:
Minnesota Nursing Home Bill of Rights
Health Insurance Portability &
Accountability Act (HIPAA)
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The Health Insurance Portability & Accountability Act
In 1996, a Public Law was passed by Congress; it’s purpose is to:
 Improve portability & continuity of health insurance coverage
in the group & individual markets.
 Combat waste, fraud, & abuse in health insurance & health care
delivery.
 Reduce costs & the administrative burdens of health care by
improving efficiency & effectiveness of the health care system
by standardizing the interchange of electronic data for specified
administrative & financial transactions.
 Ensure protecting the privacy of Americans’ personal health
records by protecting the security & confidentiality of health
care information. (Maryland Department of Health & Mental Hygiene)
Definition of State Laws
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 In the United States, state law is the law of each
separate U.S. state, as passed by the state
legislature (and signed into law by the state
governor) and adjudicated by state courts.
 State law exists in parallel, and sometimes in conflict
with the United States federal law. These disputes
are often resolved by the federal courts.
(Wiley & Sons, Inc., n.d.)
State Laws
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Examples of State Laws
1. Criminal Background Checks
2. Good Samaritan
3. Vulnerable Adult Law
Criminal Background Studies
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 A background check or background investigation
is the process of looking up and compiling criminal
records, commercial records & financial records (in
certain instances such as employment screening) of an
individual.
 Background checks are often requested by employers on
job candidates, especially on candidates seeking a
position that requires high security or a position of trust,
such as in a school, hospital, financial institution, airport,
and government.
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These checks are traditionally administered by a government agency
for a nominal fee, but can also be administered by private
companies.
Results of a background check typically include past employment
verification, credit score, and criminal history.
Example of a State Law
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 To learn about Minnesota’s law regarding the
requirements for a background check.
 Access the website:
 Minnesota Background Studies on
Licensees and Other Personnel
Good Samaritan Acts
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 Good Samaritan acts are laws designed to protect
healthcare providers who provide assistance at the
scene of an emergency against the claims of
malpractice unless it can be shown that there was a
gross departure from the normal standard of care or
willful wrongdoing on their part.
 Gross negligence usually further involves injury or
harm to the person.
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For example, an injured child left on the side of the road may
be struck by an automobile when the nurse leaves to obtain
help.
(Ramont & Niedringhaus,p. 32)
Good Samaritan Acts
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 It is generally believed that a person who renders
help in an emergency, at a level that would be
provided by any reasonable prudent person under
similar circumstances, cannot be held liable.
 Guidelines for healthcare workers who choose to
render emergency care:
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Limit actions to those normally considered first aid if possible.
Do not perform actions that you do not know how to do.
Offer assistance, but do not insist.
Do not leave the scene until the injured person leaves or
another qualified person takes over.
(Ramont & Niedringhaus, pp. 32-33)
Good Samaritan Law (Refer to your state’s
Good Samaritan Law)
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 A person at the scene of an emergency who knows that
another person is exposed to or has suffered grave physical
harm shall, to the extent that the person can do so without
danger or peril to self or others, give reasonable assistance to
the exposed person. If one does not, it is a petty misdemeanor.
 A person who, without compensation or the expectation of
compensation, renders emergency care, advice, or assistance
at the scene of an emergency or during transit to a location
where professional medical care can be rendered, is not liable
for any civil damages as a result of acts or omissions by that
person in rendering the emergency care, advice, or assistance,
unless the person acts in a willful and wanton or
reckless manner in providing the care, advice, or assistance.
(Office of Revisor of Statutes, State of Minnesota)
Vulnerable Adult Act
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 Refer to your state’s Vulnerable Adult Act/Law
 The Vulnerable Adult Act outlines the types of abuse and
the role of Adult Protective Services.
 There are three basic kinds of maltreatment:
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Abuse - physical, emotional or sexual
Neglect - caregiver neglect or self neglect
Financial exploitation
 State agencies such as Department of Human Services
and Department of Health investigate complaints in
facilities that are licensed and regulated (such as Adult
foster care homes, nursing facilities, hospitals).
 Counties may have their own adult protection units
which are responsible for investigating county
complaints and providing protective services.
(City of Minneapolis, 1997-2010; Minnesota Board on Aging)
Advance Directives
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Advance Directives address such issues as:
Life-prolonging treatments-Procedures that do not cure a
terminal illness or condition but rather keep a patient alive.
Examples include a breathing machine, performing CPR, a
feeding tube.
Terminal condition-A condition that is incurable and
medical treatment is only delaying the dying process.
Persistent vegetative state- being in a unconscious state or
a permanent coma without any chance of regaining
consciousness.
Do not resuscitate (DNR)-Medical personal are informed
that if the patient’s heart stops beating or if the patient
stops breathing they are not to attempt CPR.
(Minnesota Department of Health)
Advance Directives
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What is a Health Care Directive?
 A health care directive is a written document that
informs other of your wishes about your health care.
It allows you to name a person ("agent") to decide for
you if you are unable to decide. It also allows you to
name an agent if you want someone else to decide for
you. You must be at least 18 years old to make a
health care directive. (Minnesota Department of Health)
Advance Directives
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Why Have a Health Care Directive?
 A health care directive is important if your attending
physician determines you can't communicate your
health care choices (because of physical or mental
incapacity).
 It is also important if you wish to have someone else
make your health care decisions.
 In some circumstances, your directive may state that
you want someone other than an attending physician
to decide when you cannot make your own decisions.
(Minnesota Department of Health)
What Can I Put in a Health Care Directive?
You may include:
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 The person you trust as your agent to make health care decisions for you.
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You can name alternative agents in case the first agent is unavailable, or
joint agents.
Your goals, values and preferences about health care.
The types of medical treatment you would want (or not want).
How you want your agent or agents to decide.
Where you want to receive care.
Instructions about artificial nutrition and hydration.
Mental health treatments that use electroshock therapy or neuroleptic
medications.
Instructions if you are pregnant.
Donation of organs, tissues and eyes.
Funeral arrangements.
Who you would like as your guardian or conservator if there is a court
action.
(Minnesota Department of Health)
Advance Directives
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 Here is a handy toolkit that explains the “How to”
and the “why” one should have an advanced
directive.
 Visit the Minnesota Health Care Directive Toolkit
 You may check if your parents or grandparents have
one of these directives or if they wish to discuss and
complete one.
Living Wills
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Living wills are written documents that direct treatment
in accordance with a patient’s wishes in the event of
terminal illness or condition.
Living wills may be difficult to interpret and not
clinically specific in unforeseen circumstances.
 Each state providing for living wills has its own
requirements for executing them.
 Generally, two witnesses, neither of whom can be a
relative or a physician, are needed when the patient signs
the document.
 If healthcare workers follow the directions of the living
will, they are immune from liability.
(Kockrow & Christensen, p. 203)
Living Will
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Living will is a document that allows a person to explain
in writing which medical treatment he or she does or
does not want during a terminal illness. A terminal
illness is a fatal illness that leads ultimately to death.
The living will takes effect only when the patient is
incapacitated & can no longer express his or her wishes.
The living will states which medical treatments may be
used & which may not be used to die naturally & without
the patient’s life being artificially prolonged by various
medical procedures.
The purpose of a living will is to allow you to make
decisions about life support & direct others to implement
your desires in that regard.
(Kockrow & Christensen, pp. 203)
Living Will
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 The Living Will allows you to make the decision of
whether life-prolonging medical or surgical
procedures are to be continued, withheld, or
withdrawn, as well as when artificial feeding and
fluids are to be used or withheld.
 It allows you to express your wishes prior to being
incapacitated. Your physicians or health care
providers are directed by the Living Will to follow
your instructions. You may revoke the Living Will
prior to becoming incapacitated.
(Kockrow & Christensen, pp. 203-204)
Durable Power of Attorney for Health
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 A durable power of attorney for health care
designates an agent, surrogate, or proxy to make health
care decisions on his/her own behalf.
 This agent is appointed to make health care treatment
decisions based on the patient’s wishes.
 In addition to federal statutes, the ethical doctrine of
autonomy ensures the patient the right to refuse medical
treatment.
 The courts have upheld the right of a legally competent
patient to refuse medical treatments based on religious
beliefs (Example: Jehovah's Witnesses accept medical
treatment but refuse blood transfusions for religious
beliefs)
(Kockrow & Christensen, p. 203)
Health Care Core Curriculum
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REGULATION OF
HEALTHCARE
PRACTICE
Regulation of Health Care Practice
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Credentialing is the process of determining and
maintaining competence in nursing practice.
 The credentialing process is one way in which the
nursing profession maintains standards of practice
and accountability for the educational preparation of
its members.
 Credentialing includes:
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Licensure
Registration
Certification
Accreditation
(Ramont & Niedringhaus, p. 31)
Licensure
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 Before a person can begin work in many health professions, a state
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license is required. Qualifications for licensure can vary from
profession to profession and state to state.
An individual must complete certain steps, such as training,
acquiring an academic degree in a particular area of study, and/or
passing an exam, before becoming eligible to receive their license.
A person must graduate from a school whose program is approved
by the state licensing agency.
After graduation, he or she must prove qualification to provide
health care services by passing a special licensing examination.
The licensure credential is issued by governmental agencies such
as the state’s Education Department, Department of Higher
Education, and Department of Health.
(Stanfield, Cross, & Hui)
Licensure
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 Licensure is usually granted on the basis of
education and examination rather than performance.
 Licensure is usually permanent, but a periodic fee,
demonstration of competence, or continuing
education may be required.
 Licensure may be revoked by the granting agency for
incompetence, criminal acts, or other reasons
stipulated in the statutes or rules governing the
specific area of licensure.
 Licensure has been set in place to protect the public
from unqualified practitioners.
(Ramont & Niedringhaus, p. 31)
Certification
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 Professional certification ensures that health
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professionals meet established levels of competency.
Professional certification is granted by national
organizations NOT by individual states, therefore it
carries national recognition.
In health professions, in which there is no state
licensure, professional certification may be required.
A person must have completed a program of training
recognized by the profession. Typically this means
graduating from an accredited program.
After graduation, a student must pass a special
certification program.
(Stanfield, Cross, & Hui)
Registration
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Professional registration means the listing of certified
health professionals on an official roster kept by the
state agency or health professional organization.
Some professions use the terms certification and
registration interchangeably. (Stanfield, Cross, & Hui)
Accreditation
54
 Accreditation is a process by which a private
organization, such as the National League of
Nursing, or a governmental agency, such as the state
board of nursing, appraises and grants accredited
status to institutions, programs, or services that meet
predetermined standards.
 Minimum standards for basic nursing education
programs are established in each state of the United
States and in each province in Canada.
 State accreditation or provincial approval is granted
to schools of nursing that meet the minimum
criteria.
(Ramont & Niedringhaus, p. 31)
Nurse Practice Acts
55
 Each state in the United States has a nurse practice act,
and each province in Canada has a nurse practice act or
an act for professional nursing practice.
 Nurse practice acts legally define and describe the scope
of nursing practice, which the law seeks to regulate,
thereby protecting the public as well.
 Nurse practice acts are the legal authority that limits the
services a member of the profession may perform and is
determined by the laws of a jurisdiction. The legal
authority for each health care profession is defined
within their own state’s practice act. (Ramont & Niedringhaus,
p. 31)
Scope of Practice
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 To view an example:
Access the Website:
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Definitions of Scope of Practice-MN Board of Nursing
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This website provides definitions about the different levels of
nurses including advanced practice nurses and nursing
assistants.
It also presents definitions about the practice of nursing which
varies with the type of nurse (levels of education differ)
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State Law for Nurse Aide Training
57
 To view an example of a State Law for Nurse
Aide/Nursing Assistant Training:
Access websites:
 Nursing Assistant Training-Minnesota Law
 Minnesota CNA Certification
Standards of Practice
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 Another way the nursing profession attempts to ensure
that its practitioners are competent and safe to practice is
through the establishment of standards of practice.
 These standards are often used to evaluate the quality of
care nurses provide.
 Scope of practice is a document developed by the board
of nursing that governs practice with each state.
 Example: The Minnesota Board of Nursing even has a
scope of practice for nursing students in clinical sites.
(Ramont & Niedringhaus, p. 31)
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