Cna chapter 3 legal and ethical issues

LEARNING OUTCOMES After studying this chapter, you should be able to:

LO 3. I Define licensure, certification, registration, and accreditation.

LO 3.2 Demonstrate an understanding of how physicians

are licensed, how physicians are regulated, and the purpose of a medical board.

LO 3.3 Discuss the changing configuration of health care management.

LO 3.4 Distinguish among the different types of managed care health plans.

LO 3.5 Discuss the federal legislation that impacts health care plans.

LO 3.6 Discuss the impact of telemedicine and social media on the health care workplace.

51

LO 3.1

Define licensure, certification, registration, and accreditation.

licensure A mandatory credentialing process established by law, usual ly at the state level, that grants the right to practice certain skills and endeavors.

certification A voluntary credentia li ng process whereby applicants who meet specific requirements may receive a certificate.

FROM THE PERSPECTIVE OF . .. • - "'''l . - -rr-'11~ --- ..- .......

MELODY, A CERTIFIED NURSING ASSISTANT (CNA), works in a skilled nursing care facility caring for elderly patients. "I like the hands-on care," she says, "and I love just visiting with my patients. They come from all walks of life, and some of them have traveled all over the world."

The part of her job she dislikes the most, Melody adds, "is the demanding patients, who want everything right now. Demanding rel- atives can also be unreasonable. A daughter will tell me, 'I want you to respond immediately whenever my mother calls for you.' They don't understand, or don't care, that I have several patients to look after."

Once, Melody recalls, several family members were visiting their elderly relative. "I walked in to check my patient, and one of his grand- daughters asked me to get her a soda. There was a vending machine in the visitors' lounge, and I debated telling the woman I'm not a wait- ress, and she could get her own drink. I didn't, though. I got her the drink, but I resented being asked to do it. I'm just a CNA, but I'm not there to wait on patients' relatives."

From Melody's perspective, her job did not include providing refreshments for patients' visitors.

From the demanding visitor's perspective, perhaps Melody's job is to serve all needs of anyone in the patient's room.

Licensure, Certification, Registration, and Accreditation With increased medical specialization have come more exacting profes- sional requirements for health care practitioners. Members of the health care team today are usually licensed, registered, or certified to perform specific duties, depending on job classification and state requirements. Furthermore, programs for educating health care practitioners are often accredited. Accreditation is a process education programs may complete that ensures certain standards have been met. Managed care plans may also earn accreditation or certification for excellence.

Licensure is a mandatory credentialing process established by law, usually at the state level. Licenses to practice are required in every state for all physicians and nurses and for many other health care practitioners as well. Individuals who do not have the required license are prohibited by law from practicing certain health care professions.

Certification is a voluntary credentialing process, usually national in scope, and is most often sponsored by a nongovernmental, private- sector group. Certification by a professional organization, usually through an examination, signifies that an applicant has attained a cer- tain level of knowledge and skill. Since the process is voluntary, lack of certification does not prevent an employee from practicing the profes- sion for which he or she is otherwise qualified. (In the opening sce- nario, Melody has chosen to fulfill requirements to become a certified nursing assistant. In her state she could begin working as a nursing assistant without certification, but at a lower hourly wage.)

52 Part One I The Foundations of Law and Ethics

Registration is an entry in an official registry or record, listing the names of persons in a certain occupation who have satisfied specific requirements. The list is usually made available to health care provid- ers. One way to become registered is simply to add one's name to the list in the registry. Under this method of registration, unregistered per- sons are not prevented from working in a field for which they are oth- erwise qualified.

A second way to become registered in a health occupation is to attain a certain level of education and/ or pay a registration fee. Under this second method, when there are specific requirements for registra- tion, unregistered individuals may be prevented from working in a field for which they are otherwise qualified.

Under no circumstances may persons claim to be licensed, certified, or registered if they are not.

Unlike licensing, certification, and registration as discussed earlier, accreditation does not refer to a qualification process for individu- als practicing health care professions. Instead, it refers to a process for officially authorizing or approving health care practitioner edu- cation programs, health care facilities, and managed care plans. For example, if the school where you are enrolled is accredited by a rec- ognized regional or national accrediting agency, advantages for you include:

• An assurance of high-quality standards at your school, based on the latest research and professional practice.

• An opportunity for you to participate in federal and/or state finan- cial aid programs.

• A better chance that credits earned at your present school will be accepted at another institution if you transfer to another school or want to attend graduate school.

Two examples of accrediting agencies for health care practitio- ner education programs are the Commission on Accreditation of Allied Health Education Programs (CAAHEP), discussed in more detail later in the chapter, and the Accrediting Bureau of Health Education Schools (ABHES). Accreditation is usually voluntary, but accredited programs for various disciplines must maintain certain standards to earn and keep accreditation. Most accredited programs for health care education also include an internship or externship (practical work experience) that lasts for a specified period of time.

The Joint Commission (TJC) accredits health care organizations that meet certain standards including the following:

• General, psychiatric, children's, and rehabilitation hospitals.

• Critical access hospitals.

• Health care networks, including health maintenance organizations (HMOs), preferred provider organizations (PPOs), integrated deliv- ery networks, and managed behavioral health care organizations.

• Home care organizations, including those that provide home health services, personal care and support services, home infu- sion and other pharmacy services, durable medical equipment ser- vices, and hospice services.

registration A credential ing procedure whereby one's name is listed on a reg ister as having paid a fee and/or met certa in criteria within a profession.

accreditation Official authorization or approval for conforming to a specified standard, for healt h care education programs, health care facilities, and managed ca re p lans.

Chapter 3 I W orking in Health Care 53

reciprocity The process by wh ich a professional license obta ined in one state may be accepted as valid in other states by prior ag reement without reexam ination.

• Nursing homes and other long-term care facilities, including sub- acute care programs, dementia special care programs, and long- term care pharmacies.

• Assisted living facilities.

• Behavioral health care organizations.

• Ambulatory care providers, such as outpatient surgery facilities, rehabilitation centers, infusion centers, and group practices, as well as office-based surgery.

• Clinical laboratories, including independent or freestanding labo- ratories, blood transfusion and donor centers, and public health laboratories.

To earn and maintain TJC accreditation, an organization must undergo an on-site survey by a TJC survey team at least every three years. Laboratories must be surveyed every two years.

A recognized accrediting agency for managed care plans is the National Committee for Quality Assurance (NCQA), an independent, nonprofit organization that evaluates and reports on the quality of the nation's managed care organizations. NCQA evaluates managed care programs in three ways:

1. Through on-site reviews of key clinical and administrative processes.

2. Through the Healthcare Effectiveness Data and Information Set (HEDIS)-data used to measure performance in areas such as immunization and mammography screening rates.

3. Through use of member satisfaction surveys.

Participation in NCQA accreditation and certification programs is voluntary. At the NCQA Web site (www.ncqa.org/ReportCards), a person looking for quality medical facilities or health insurance plans can see rankings.

The Commission on Accreditation of Allied Health Education Pro- grams (CAAHEP) accredits more than 2,000 programs in 23 allied health professions throughout the United States and Canada. CAAHEP provides information concerning duties, education requirements, and sources for further information about allied health professions and the location of schools offering the accredited programs.

RECIPROCITY

For those professions that require a state license, such as physician, registered nurse, or licensed practical or vocational nurse, reciprocity may be granted. This means that a state licensing authority will accept a person's valid license from another state as proof of competency without requiring reexamination.

If a state license is required and reciprocity is not granted when moving to another state, then the health care practitioner must apply to the state licensing authority to take required examinations to obtain a valid license to practice in the new state.

54 Part One I The Foundations of Law and Ethics

Check Your Progress

I. Define registration.

2. Define licensure.

3. How does licensure differ from registration or certification?

4. Explain how certification for a health care practitioner differs from accreditation of a health care facility or education program.

5. Define reciprocity.

Physicians' Education and Licensing THE PHYSICIAN'S EDUCATION

Doctor of Medicine (MD) Degree Before a person can be licensed to practice medicine, he or she must complete a rigorous course of study. Programs leading to the doctor of medicine (MD) degree consist of:

• Graduation with a bachelor's degree from a four-year, premedi- cine course, usually with a concentration in the sciences.

• Graduation from a four-year medical school-in the United States, a school accredited by the Liaison Committee on Medical Educa- tion. Upon graduation from medical school, students are awarded the doctor of medicine (MD) degree.

After earning the MD degree, the prospective physician must then pass the United States Medical Licensing Examination (USMLE), com- monly called "medical boards." Student physicians take Part 1 of the exam after the first year of medical school. They take Part 2 of the exam during the fourth year of medical school, and Part 3 during the first or second year of postgraduate medical training.

The next step in a physician's education is completion of a resi- dency: a period of practical postgraduate training in a hospital. The first year of residency is called an internship.

After completion of the internship and passing the medical boards, the National Board of Medical Examiners (NBME) certifies the physi- cian as an NBME Diplomate.

LO 3.2 Demonstrate an understanding of how physicians are licensed, how physicians are regulated, and the purpose of a medical board.

ChafJter 3 I Working in Health Care 55

allopathic Means "different suffering" and refers to the medical philosophy that dictates training physicians to intervene in the disease process, through the use of drugs and surgery.

To specialize, physicians must complete an additional two to six years of residency in the chosen specialty. When the residency is completed, specialists can then apply to the American Board of Medical Specialties (ABMS) to take an exam in their specialty. After passing this exam, phy- sicians are board-certified in their area of specialization. For example, a specialist in oncology becomes a board-certified oncologist, and so on.

Doctor of Osteopathy (DO) Degree All 50 states also license physicians who have obtained a doctor of osteopathy (DO) degree from an accredited medical school, have successfully completed a licensing examination governed by the National Board of Osteopathic Medical Examiners, and have successfully completed the required internship and residency.

MDs and DOs spend 12 years or more training to become physi- cians. Both medical and osteopathic physicians prescribe drugs and practice surgery. The difference between the two is in their approach to medical treatment. Osteopathic doctors are trained to emphasize the musculoskeletal system of the body and the correction of joint and tissue problems. Medical doctors are trained in allo.pathic medicine, which means, literally, "different suffering" and emphasizes interven- tion in the form of drugs and/or surgery to alleviate symptoms.

Osteopathic and medical doctors can practice as generalists or primary care physicians-a designation that includes primary care spe- cialties in family medicine/general practice, general internal medicine, and general pediatrics-or they can specialize in a specific type of medi- cine, such as obstetrics/gynecology, oncology, geriatrics, surgery, ortho- pedics, or a host of other specialties. Medical and osteopathic physicians may also further specialize in subspecialties, such as abnormalities of the hand within orthopedics, or diseases of the gastrointestinal system within internal medicine.

Recent U.S. government statistics show that in the United States, medical students are three times more likely to specialize than to remain generalists or primary care physicians. This has led to a ratio in the United States of 37.4 percent primary care physicians to 62.6 percent specialists. According to the American Medical Student Association (AMSA), reasons for the preference among medical stu- dents to specialize include these:

• Higher financial compensation for specialists (studies have found that a surgeon can earn up to seven times more than a primary care physician, per time spent with the patient).

• Decreased prestige for generalists.

• Medical training most often provided in tertiary care settings- those providing highly specialized services.

• Decreased exposure to generalist role models.

• Lack of attractiveness of general practices in, for example, rural and underserved areas because of relative isolation from technol- ogy and peer support.

A person educated in a foreign medical school who wants to prac- tice in the United States must serve a residency and must take the Clinical Skills Assessment Exam (CSAE) before being licensed. The CSAE evaluates a candidate's ability to use the English language, to take medical histories, and to interact with patients and treat a case.

56 Part One I The Foundations of Law and Ethics

THE PHYSICIAN'S LICENSE AND RESPONSIBILITIES

After physicians have finished their education and obtained licenses to practice medicine, their continued licensure falls under the juris- diction of state medical boards (see Figure 3-1). Each state's medical board has the authority to grant or to revoke a physician's license. The federal government has no medical licensing authority except for the permit issued by the Drug Enforcement Administration (DEA) for any physician who dispenses, prescribes, or administers controlled sub- stances, including narcotics and nonnarcotics (see Chapter 9).

When these conditions are satisfied and a license is granted, the physician who moves out of the licensing state may obtain a license in his or her new state of residence by:

• Reciprocity-the process by which a valid license from out of state is accepted as the basis for issuing a license in a second state if prior agreement to grant reciprocity has been reached between those states.

• Endorsement-the process by which a license may be awarded based on individual credentials judged to meet licensing require- ments in the new state of residence.

FIGURE 3-1 Criteria for State Licensing of Physicians

The following criteria must be met before a physician can be granted a state license to practice medicine. He or she

~ Must have reached the age of majority, generally 21.

~ Must be of good moral character.

• Must have completed required preliminary education, including graduation from an approved medical school.

• Must have completed an approved residency program.

~ Must be a U.S. citizen or have filed a declaration of intent to become a citizen. (Some states have dropped this requirement.)

• Must be a state resident.

~ Must have passed all examinations administered by the state board of medical examiners or the board of registration.

- ·+·--

Chapter 3 I Working in Health Care 57

medical practice acts State laws w ritten for t he express purpose of governing the practice of medicine.

In some situations, physicians do not need a valid license to practice medicine in a specific state. These situations include the following:

• When responding to emergencies.

• While establishing state residency requirements in order to obtain a license.

• When employed by the U.S. armed forces, Public Health Service, Veterans Administration, or other federal facility.

• When engaged solely in research and not treating patients.

Physicians may be licensed in more than one state. Periodic license renewal is necessary; this usually requires simply paying a fee. How- ever, many states require proof of continuing education units for license renewal; the average is 50 hours annually.

License Revocation or Suspension A physician's license can be revoked (canceled) or suspended (temporarily recalled) for convic- tion of a felony, unprofessional conduct, or personal or professional incapacity.

A felony is a crime that is punishable by death or a year or more in prison. Conviction of a felony is grounds for revocation or suspen- sion of the license to practice medicine. Felonies include such crimes as murder, rape, larceny, manslaughter, robbery, arson, burglary, violations of narcotic laws, and tax evasion.

Unprofessional conduct is also cause for revoking or suspending a physician's license. Some states substitute the term gross immorality for unprofessional conduct, but offenses in either category are considered serious breaches of ethics and may also be illegal. Conduct deemed unprofessional includes falsifying records, using unprofessional meth- ods to treat a disease, betrayal of patient confidentiality, fee splitting, and sexual misconduct.

Personal or professional incapacity may be due to senility, injury, illness, chronic alcoholism, drug abuse, or other conditions that impair a physician's ability to practice.

MEDICAL PRACTICE ACTS AND MEDICAL BOARDS

In all 50 states, medical practice acts have been established by statute to govern the practice of medicine. Primary mandates of medical prac- tice acts are to:

1. Define what is meant by "practice of medicine" in each state.

2. Explain requirements and methods for licensure.

3. Provide for the establishment of medical licensing boards.

4. Establish grounds for suspension or revocation of license.

5. Give conditions for license renewal.

Medical practice acts were first passed in colonial times, but were repealed in the 1800s, when citizens decided that the U.S. Constitution gave anyone the right to practice medicine. Quackery became rampant, and for the protection of the public, medical practice acts were reenacted.

Although laws are in place to protect consumers against medical quackery, even today unscrupulous people attempt to circumvent the law by hawking devices, potions, and treatments they say are

58 Part One I The Foundations of Law and Ethics

"guaranteed" to cure any ailment or infirmity. Each state periodically revises its medical practice acts to keep them current with the times. Medical practice acts can be found in each state's code, which consists of laws for that state. Copies of state codes are available in most public libraries, in some university libraries, and on the Internet. (State codes as they apply to health care can be accessed electronically at official state Web sites under "medical practice acts.")

Each state's medical practice acts also mandate the establishment of medical boards, whose purpose is to protect the health, safety, and wel- fare of health care consumers through proper licensing and regulation of physicians and, in some jurisdictions, other health care practitioners. Board membership is composed of physicians and others who are, in most cases, appointed by the state's governor. Some boards act indepen- dently, exercising all licensing and disciplinary powers, while others are part of larger agencies such as departments of health. Funding for state medical boards comes from licensing and registration fees. Most boards include an executive officer, attorneys, and investigators. Some legal ser- vices may be provided by the state's office of the attorney general.

Through licensing, each state medical board ensures that all health care practitioners who work in areas for which licensing is required have adequate and appropriate education and training and that they follow high standards of professional conduct while caring for patients. Applicants for license must generally:

• Provide proof of education and training.

• Provide details about work history.

• Pass an examination designed to assess their knowledge and their ability to apply that knowledge and other concepts and principles important to ensure safe and effective patient care.

• Reveal information about past medical history (including alcohol and drug abuse), arrests, and convictions.

Each state's medical practice acts also define unprofessional con- duct for medical professionals. Laws vary from state to state, but examples of unprofessional conduct include:

• Physical abuse of a patient.

• Inadequate record keeping.

• Failure to recognize or act on common symptoms.

• The prescription of drugs in excessive amounts or without legiti- mate reason.

• Impaired ability to practice due to addiction or physical or mental illness.

• Failure to meet continuing education requirements.

• The performance of duties beyond the scope of a license.

• Dishonesty

• Conviction of a felony.

• The delegation of the practice of medicine to an unlicensed individual.

Minor disagreements and poor customer service do not fall under the heading of misconduct.

medical boards Bodies established by the authority of each state's medical practice acts for the purpose of protecting the health, safety, and welfare of health care consumers through proper licensing and regulation of physicians and other health care practitioners.

Chapter 3 I Working in Health Care 59

Check Your Progress

6. Define medical practice acts.

7. Where can you find the medical practice acts for your state?

8. What is the primary responsibility of state medical boards?

COURT CASE Physician Disciplined by Board of Medical Examiners

A licensed pharmacist and a state pharmacy board

investigator called a state's Board of Medical Examiners

to express concern about a physician's prescription prac-

tices. The board investigated and found the physician had

deviated from accepted standard of care by:

• Inadequately evaluating patients before prescribing antidepressants and failing to document reasons for prescriptions or following up on patients' use of the prescribed medications.

• Prescribing antibiotics for prolonged periods as treatment for urinary tract infections without determining that the infections had recurred or documenting the recurrence of the infections. The physician had also prescribed sev- eral antibiotics to a patient at once, allowing the patient to choose which antibiotic was the most effective.

• Prescribing narcotic and anxiolytic medications (drugs that relieve anxiety) to patients with nonterminal chronic pain without adequately pursuing and docu- menting use of available alternatives to narcotics and controlled medications.

Based on the above findings, the Board of Medical Exam-

iners placed the physician on probation for two years

and ordered him to take 60 hours of continuing educa-

tion in the treatment of urinary tract infections, medical

treatment of the elderly, management of chronic pain

patients, and record keeping. He was also ordered to

make prescription records available at all times for board

inspection and was directed to stop making telephone

refills for prescriptions of controlled medications.

Miller v. Board of Medical Examiners, 609 N.W.2d 478, 2000 Iowa Sup.

COURT CASE State Board of Nursing Finds Nurse Incompetent A state board of nursing found that a nurse violated

the section of the state code that regulates nurs-

ing by repeatedly failing to conform to the minimum

standards of practice with regard to the proper main-

tenance and documentation of controlled substances.

Since the finding could have led to revocation of the

nurse's license, the nurse filed a petition for judicial

review. The district court affirmed the board's deci-

sion, and the nurse again appealed. The state court of

appeals upheld both the district court and board deci-

sions, clearing the way for temporary or permanent

revocation of the nurse's license, or other penalty. (No

final decision is available, since the opinion has not yet

been published.)

60 Part One I The Foundations of Law and Ethics

Several times while on duty, the nurse failed to

properly document and account for missing controlled

substances. In one instance, she claimed containers of

morphine and other drugs had fallen from her pocket

while she was running down a stairwell. On other occa-

sions, she claimed drug ampules had broken in her

pocket, or she had misplaced syringes filled with con-

trolled substances. Since her stories could not be cor-

roborated, and she did not properly document losses

or destruction of controlled drugs, the state court of

appeals upheld the state board of nursing's finding that

the nurse was incompetent in violating minimum stan-

dards of acceptable nursing practice.

Matthias v. Iowa Board of Nursing, 2-153/01-1019, 2002 Iowa App.

It is important to remember that while a variety of health care prac- titioners often work together as a team to provide medical care to patients, each individual is legally able to perform only those duties dictated by professional and statutory guidelines. Each health care practitioner is responsible for understanding the laws and rules per- taining to his or her job and for knowing requirements concerning renewal of licenses; recertification; and payment of fees for licensure, certification, and registration.

Fraud may, in some states, be considered unprofessional conduct, or it may be separately specified as grounds for revoking a physician's license. A physician is considered guilty of fraud if "intent to deceive" can be shown. Acts generally classified as fraud include:

• Falsifying medical diplomas, applications for licenses, licenses, or other credentials.

• Billing a governmental agency for services not rendered.

• Falsifying medical reports.

• Falsely advertising or misrepresenting to a patient "secret cures" or special powers to cure an ailment.

Check Your Progress

9. In the United States, physicians may be licensed to practice medicine as MDs or as DOs.

Distinguish between the two.

I 0. Name three types of unprofessional conduct for which a physician may lose his or her license.

Fill in the blanks or answer the following questions in the spaces provided.

I I. A physician is licensed by the in which he or she wishes to practice.

12. The federal government's authority regarding medical licensing extends only to

13. Give one example of fraud. _______________ _