3. Part B: Legal Issues–Clinical

Just as there are complex educational-legal issues related to the education of students with special health care needs, there are equally complex clinical - legal issues regarding the provision of safe and appropriate health care services for students with special health care needs when they participate in school programs. To understand the complexity of these issues, it is necessary to review the laws, regulations, and professional standards of practice that govern the practice of health care professionals in Connecticut. While the emphasis in this section will be on the laws, regulations, and standards that apply to the practice of medicine and nursing in Connecticut, it is important to recognize that other health care professionals require licensure for entry into practice in this state. These include occupational and physical therapists, speech-language pathologists, and clinical psychologists.

Regulations

The Connecticut Department of Public Health (DPH) has regulatory responsibility for licensure of all health care professionals. To fulfill its obligation to protect the health, safety, and welfare of its citizens, the state legislature delegates the function of regulating the practice of certain health professions to respective Boards of Examiners and the DPH. School health professionals whose practices are regulated by a respective Board of Examiners include physicians, nurses, physical therapists, and clinical psychologists. (The practice of other school health professionals, including occupational therapists, speech language pathologists, and independent social workers are regulated through licensure by the DPH.) For example, the Board of Medical Examiners regulates medical practice in Connecticut and the Board of Examiners for Nursing regulates nursing practice in the state. Statutes enacted by the legislature grant specific power and authority to these boards to regulate professional practice (regardless of the setting) and to monitor professional activities. The Connecticut Board of Examiners for Nursing (CBEN) has the power and authority to determine, based on the Nurse Practice Act, the scope of practice of the advanced practice registered nurse (APRN), the professional registered nurse (RN), and the licensed practical nurse (LPN). The CBEN is responsible for determining which professional nursing functions can be delegated to the LPN and what other nursing functions can be delegated to unlicensed assistive personnel (UAP). The CBEN has no regulatory authority but can issue administrative decisions or declaratory rulings. The DPH can promulgate such decision or rulings through the regulatory process.

The practice acts that apply to licensure of health professionals include language that prohibits unlicensed persons from practicing these professions for remuneration. Violation of the prohibitions can result in a fine and/or jail term. For example, the Nurse Practice Act (Connecticut General Statutes, Sections 20-87 through Sec. 20-102a), states that “No person shall, for remuneration, practice nursing as defined in subsection (a) of section 20-87a, unless properly licensed” (Connecticut General Statutes, Sections 20-102). Those found guilty of practicing nursing without a license can be fined up to $500.00 and/or imprisoned for up to five years. Furthermore, each instance of patient contact or consultation, which is in violation of the Nurse Practice Act, constitutes a separate offense. It is the Board of Examiners for Nursing and the courts that decide whether someone is practicing nursing without a license.

The State of Connecticut has specific regulations regarding qualifications of school nurses and school nurse practitioners. According to state regulations Sections 10-212-1 through 10-212-7, school nurses and nurse practitioners must be qualified to practice in these positions. The regulations require that the school nurse/nurse practitioner must be a registered professional nurse, designated as RN, as defined in Section 20-87a of the Connecticut General Statutes, and currently licensed in the State of Connecticut. The regulations also define what professional experience and education a registered nurse must have to qualify as a school nurse. These are considered minimal requirements. Other licensed personnel, RNs, or LPNs may function in an assistive role to the school nurse but may not be designated as a school nurse.

Licensure

Physicians and nurses in Connecticut, as in all states throughout the nation, must be licensed to practice medicine or nursing in the state, that is, to provide services, and perform certain functions covered within the professions’ licensure acts.

Physicians can delegate certain licensed functions to other licensed health care providers under their supervision, but not to unlicensed persons (Gelfman and Schwab, 2005, p. 112).

 Licensure for medicine and nursing is based on successful completion of required academic and clinical programs, as well as successful completion of state and/or national qualifying examinations.

The intent of licensure is to ensure that those who practice as physicians and nurses, or perform the functions described within the practice acts,

 have met certain minimal professional academic and clinical qualifications designed to protect the public from unsafe care.

 Unsafe care in medicine and nursing results in higher death rates, greater incidence of illness, injury or complication, unnecessary suffering and greater long-term expense both for the consumer and society (Chapter 378 Nursing and Chapter 370 Physician).

The practice of nursing by a registered nurse is defined in statute as

the process of diagnosing human responses to actual or potential health problems, providing supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen and executing the medical regimen under the direction of a licensed physician, dentist or advanced practice registered nurse (Connecticut General Statutes, Section 20-87(a)).

Nursing diagnosis, providing supportive and restorative care, health counseling, teaching, case finding, and referral are independent functions of the RN; that is, functions that the nurse can perform without specific orders from a physician or dentist. Collaboration in the implementation of the total health care regimen and executing the medical regimen are functions that are interdependent with the physician, advanced practice registered nurse, or dentist; that is, functions that require specific orders for specific clients. As noted in chapter 2, registered nurses may delegate specific functions to licensed practical nurses and to unlicensed persons under their supervision.

The registered nurse who has specialized training, education and experience beyond those required for RN licensure may also obtain licensure as an APRN. APRNs (nurse practitioners and clinical nurse specialists) who are so licensed:

performs acts of diagnosis and treatment of alterations in health status, as described in subsection (a) of this section, and shall collaborate with a physician licensed to practice medicine in this state. In all settings, the advanced practice registered nurse may, in collaboration with a physician licensed to practice medicine in this state, prescribe, dispense and administer medical therapeutics and corrective measures and may request, sign for, receive and dispense drugs in the form of professional samples in accordance with sections 20-14c to 20-14e, inclusive, … (Connecticut General Statutes, Section 20-87[b])

The LPN is licensed to perform selected tasks and share responsibility under the direction of a registered nurse or an advanced practice registered nurse; and within the framework of supportive and restorative care, health counseling and teaching, case finding and referral, collaborate in the implementation of the total health care regimen and execute the medical regimen under the direction of a licensed physician or dentist (Connecticut General Statutes, Section 20-87[c]). In February 1989, the CBEN, in response to a request from the Connecticut general assembly, issued a declaratory ruling to clarify the role of the licensed practical nurse. That ruling states that the LPN:

1. Must perform his/her nursing functions and shared nursing responsibility under the direction of a registered nurse.
2. Can participate in all phases of the nursing process under the direction of the registered nurse to the following extent:
   1. Contribute to the nursing assessment by collecting, reporting, and recording objective and subjective data in an accurate and timely manner. Data collection includes observation about the condition or change in condition of the client, and signs and symptoms of deviation from normal health status.
   2. Participate in the development of the strategy of care in consultation with other nursing personnel by providing data; contributing to the identification of priorities; and contributing to setting realistic and measurable goals.
   3. Participate in the assisting, delegating and giving of directed care by:
      1. Providing care for clients whose conditions are stabilized or predictable.
      2. Providing care for clients whose conditions are critical and/or unpredictable under the direct supervision of the registered nurse and, when executing the medical regimen, under the direction of a licensed physician or dentist.
      3. Implement nursing care according to the priority of needs and established goals.
      4. Providing an environment conducive to safety and health.
      5. Documenting nursing interventions and responses to care.
      6. Communicating nursing interventions and responses to care to appropriate members of the health team.
3. Must carry out all selected nursing tasks and shared nursing responsibilities under the direction of the registered nurse. The direction of the registered nurse should be immediately available, on site, in health care agencies providing in-patient and out-patient nursing services. In community health settings (which includes schools), the registered nurse must be responsible for the total plan of nursing care and should be proximately available for on-site visits and available by telephone.

Because of the complex health care needs of students in schools today, the Connecticut Advisory School Health Council, in its 1989 Guidelines on the Roles and Qualifications of School Health Personnel, recommended that LPNs should be used in schools only where on-site supervision of the registered nurse is available. This is not a legal requirement; however, the RN must still consider the recommendation and the complexity of care potentially required by the students before determining that it is safe for a LPN to function in a setting where the RN is not onsite. The RN must determine the amount of on-site supervision that must be provided to ensure safe care and the RN remains responsible for the care provided.

Standards of Practice

In addition to state licensure and regulations for health professionals and the rulings or decisions of the respective Boards of Examiners for medicine and nursing, there are numerous and complex standards within medical and nursing practice that define other criteria for an “expert” in a specialty or subspecialty area of practice. In medicine, for example, specialties include psychiatry, pediatrics, and orthopedics, while subspecialties in the area of pediatrics and psychiatry include neonatology, adolescent medicine, developmental pediatrics, and child and adolescent psychiatry. Physicians must obtain further education and clinical experience, plus pass an additional board certification examination, in order to specialize in an area of medicine beyond “general” practice.

Education for registered nurses can take three different paths. The original “modern” route to RN education was the three-year hospital program, of which only one currently exists in the state. This program results in a RN diploma and is an entry point for technical nursing practice. This RN diploma has been moved into the two-year associate of science in nursing, and is also considered an entry point for technical nursing practice. The four-year Bachelor of Science in nursing is the entry point for professional nursing practice. Most nurses educated in the last 20 years will have attended either a two or a four-year college. Nurses also must obtain further clinical experience and, generally further education, plus pass a national certification examination in order to become certified as an expert nurse in a specialty area. In nursing, specialty areas may include pediatric nursing, community/public health nursing, or psychiatric nursing. Further nursing subspecialties in these areas include, for example, neonatal nursing and school nursing. As of 1991, the National Board for Certification of School Nurses Inc. certifies school nurses and requires RNs to have a baccalaureate degree to sit for the exam. This certification is not required to practice, but it is a standard set forth by the National Association of School Nurses (NASN) and that school districts may consider when hiring new personnel, and/or encouraging present personnel to pursue continuing education or developing salary incentives. Families should also know the preparation and expertise of the health care professionals providing services to their children.

There are additional standards of practice in nursing and in medicine that can be used in a court of law to demonstrate whether the nurse or physician met the required standard of care in a specific instance. These standards are generally developed and published by the profession’s national organization or related organizations such as the American Academy of Pediatrics for pediatricians or the American Nurses Association (ANA) for nurses. The most recent school nursing standards, School Nursing Scope and Standards of Practice, were published jointly by the ANA and NASN in 2011. Standards are valuable to health professionals in planning, administering, and evaluating appropriate services; identifying competency of practitioners; and to clinical supervisors in evaluating the health professional’s performance. These standards have been used to develop the CSDE’s Competency in School Nurse Practice and Evaluation Tool. In addition, there are numerous other standards for nursing practice including the NASN Code of Ethics (2002) and ANA Code of Ethics (2001).

Practice by Unlicensed Persons

As previously mentioned, practice acts include language that prohibit unlicensed persons from practicing licensed professions. In Connecticut, individuals may be imprisoned for up to five years and fined up to $500, or both, for practicing without a license the following health professions: medicine, nursing, occupational therapy, physical therapy, psychology (not applicable to certified school psychologists) or school psychological examiners not licensed by the DPH as a psychologist under Connecticut General Statutes, Section 20-187(a), speech pathology and audiology. This means that there can be criminal, in addition to civil, consequences if a school employee performs the licensed function of one of those health professionals when the function or task has not been (or cannot be) delegated by the licensed professional. Such licensed functions of health professionals include, for example, assessment of the student’s health status, development of a plan to meet the student’s health care needs in school, or the performance of a health care procedure that has not been (or cannot be) delegated by the appropriately licensed professional.

In a court case in Oregon (see Carol Mitts v. Hillsboro Union High Scholl District No. 3 et al.,Washington County Circuit Court, Case No. 87-11420), a school district was sued by a school health assistant because the school principal assigned the health assistant (an unlicensed school employee) to perform clean intermittent catheterization (CIC) on a new middle grade student with spina bifida, following training by the mother and with intermittent supervision by the part-time school nurse. The court asked the Oregon State Board of Nursing for a declaratory ruling in the matter. The board’s ruling was as follows:

… the central conclusion is that the unlicensed persons in the school setting may be required to perform tasks of nursing care when those tasks are properly delegated to them by a registered nurse. Unlicensed persons may not perform those tasks on their own volition nor be required to perform those tasks when directed to do so by school authorities or parents.

The issue here is not merely the performance of CIC in a school setting, and who may perform it. Rather the issue is the identification of health care needs of student and how best to meet those needs. The purpose of hiring individuals with various expertise and credentials in the school setting is to utilize their knowledge and skills to provide student with an environment for learning and the provision of related services. A nurse employed by, or under contract to, a school system must be allowed to use her skills and expertise in the nursing process to meet identified health care needs of students. The law requires no less.

The Oregon State Board of Nursing concluded that the principal was unlawfully practicing nursing without a license, not so much because he assigned the task of CIC, but rather because he presumed to understand the health care needs of the student (i.e., assumed the functions of health assessment, diagnosis and planning) for which he was neither qualified nor licensed. The board also determined that the school nurse had not acted according to professional nursing standards. A footnote to the declaratory ruling states:

The Board expects that licensed nurses take an active role in applying the nursing process. (The school nurse’s) role was passive in that she accepted the assignment by school authorities regarding (the student’s) health care needs and acted upon that assessment by supervising (the health assistant).

In an additional footnote to the declaratory ruling, the Oregon State Board of Nursing noted that health assistants in school districts in Oregon were apparently being required “to engage in systematic problem solving which includes the steps of assessing, making nursing diagnoses, planning, intervening, and evaluating.” This constitutes the practice of nursing that health assistants may not lawfully do unless they are properly licensed.

Training of School Personnel by Parents

While the licensure acts do not prohibit parents from learning and providing specialized care to their own children, parents cannot take on the responsibility for teaching others to provide such care, nor can they unilaterally determine the best plan of care for their child in the school setting. Based on the practice acts for health professionals, it is illegal for school personnel to provide health care to a student based solely on instruction or guidance by a parent. This does not mean, however, that parents should not collaborate with the school nurse, for example, in developing a plan of care and in preparing other school personnel for their child’s entry into school. Since the parents have expertise about the individual strengths and needs of their child, it is critical that they collaborate with the school nurse in preparing other school personnel to provide a safe environment for their child. Even if a parent is a licensed nurse, the parent cannot take on the sole responsibility of training school personnel to provide specialized care since the parent is not part of the school’s organized structure and will not be responsible for the ongoing care of the student in school or for the supervision of other personnel providing care. The school system must ensure that the school nurse completes a health assessment of the student, determines that delegation of care is appropriate in the school, and is well prepared to train and supervise other school personnel who are providing the care.

References

American Nurses Association. Principles for Delegation. 

American Nurses Association and National Council of State Boards of Nursing. Joint Statement on Delegation.

Caldara-Olson, L., McComb, M., Mazyck, D., Wolfe, L. and Byrd, S. Field Trip Precautions. NASN School Nurse, Mar 2005; vol. 20: pp. 7.

Collins, N., Murphy, P., Winters, L., Van Cleve, C. and Minchella, L. Why Is Your State Nurse Practice Act Important to School Nursing Practice? NASN Newsletter, Mar 2008; vol. 23: pp. 24-25.

Connecticut Board of Examiners for Nursing. Declaratory Ruling on Delegation by Licensed Nurses to Unlicensed Assistive Personnel.

Connecticut Board of Examiners for Nursing. Declaratory Ruling on LPN Scope of Practice.

Connecticut State Department of Education. (1989). Connecticut Advisory School Health Council. Roles and qualifications of school health personnel.

Connecticut State Department of Education. (2009). Competency in School Nurse Practice.

Connecticut State Department of Education. (2009). School Nurse Competencies Checklist and Evaluation Tool.

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Davis-Alldritt, L. If I Delegate, Am I at Risk?. NASN School Nurse, Sep 2009; vol. 24: pp. 180-183.

Delegation and the School Nurse. NASN School Nurse, Jan 2008; vol. 23: pp. 15.

DuPlessis Erickson, C., Splett, P., Stoltzfus Mullett, S., Bielski Heiman, M.

Gelfman, M.H.B. Discrimination in school:§504, ADA, Title IX, in Schwab, N.C. and Gelfman, M.H.B. (eds.) Legal issues in School Health Services A Resource for School Administrators, School Attorneys, School Nurses, Sunrise River Press, North Branch, MN, pp. 335-371 ( 2005).

Gordon, S. and Barry, C. Delegation Guided by School Nursing Values: Comprehensive Knowledge, Trust, and Empowerment. The Journal of School Nursing, Oct 2009; vol. 25: pp. 352-360.

Gursky, B. and Ryser, B. A Training Program for Unlicensed Assistive Personnel. The Journal of School Nursing, Apr 2007; vol. 23: pp. 92-97.

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Healthy Learner Model for Student Chronic Condition Management--Part I, The. The Journal of School Nursing, Dec 2006; vol. 22: pp. 310-318.

LPN Declaratory Ruling. 

National Association of School Nurses. What Would You DO? NASN School Nurse, May 2001; vol. 16: pp. 22.

National Council of State Boards of Nursing. Working with Others.

O’Dell, C., O’Hara, K., Kiel, S. and McCullough, K. Emergency Management of Seizures in the School Setting. The Journal of School Nursing, Jun 2007; vol. 23: pp. 158-165.

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State of Connecticut Board of Education. (1991). Requirements and guidelines for special education and related services for children (ages 3-5) with disabilities. Hartford, Author.