1. Chapter 3: Legal and ethical issues

2. Learning Objectives List examples of legal and ethical behavior
Explain the Omnibus Budget Reconciliation Act (OBRA)
Explain resident’s rights in regards to their importance
Discuss abuse and neglect, including how to report each
List examples of behavior supporting and promoting residents’ rights
Describe what happens when a complaint of abuse is made against a nursing assistant
Explain how disputes may be resolved, including the ombudsman’s role
List ways to protect resident’s privacy
Explain the Patient Self-Determination Act (PSDA)

3. Legal and ethical issues
Ethics
Law
Guideline’s for legal and ethical behavior
Ethics are the knowledge of right and wrong and ethical people have a duty of responsibility towards others. Ethics tells people what they should do.
Laws tell people what they must do and are usually based on ethics.
Both ethics and laws are important in healthcare by protecting people receiving care and guiding people giving care. There are some foundational principles adopted by healthcare organizations to assure everyone on the healthcare team is acting in an ethical and legal manner. Here are some of those guidelines:
Be honest at all times.
Protect residents’ privacy.
Keep staff information confidential.
Report abuse or suspected abuse of residents, and assist residents in reporting abuse if they wish to do so.
Follow the care plan and your assignments.
Do not perform any task outside your scope of practice.
Report all resident observations and incidents to the nurse
Document accurately and promptly.
Follow rules on safety and infection prevention.
Do not accept gifts or tips.
Do not get personally or sexually involved with residents or their family members or friends.
Following these guidelines will assure that the NA provides ethical and legal care.

4. Omnibus Budget Reconciliation ACT (obra)
Minimum Data Set (MDS)
The Omnibus Budget Reconciliation Act (OBRA) is a federal law passes in 1987 that sets minimum standards for NA training (75 hours), explains required competency exam for NAs, and defines the minimum standards for NA training (12 hours per year). The law also required that each state maintain a state registry of NAs, standardized NA instructor training requirements, and increased minimum staff requirements. OBRA defined the minimum services that long-term care facilities must provide, resident assessment requirements (MDS), the survey process, and residents’ rights.
The Minimum Data Set (MDS) is a uniform resident assessment system performed within 14 days of admission to a long-term care facility, annually, and with any significant change in the resident’s condition. The MDS must also be reviewed every three months for each resident. The NA may collect some data and record observations that will be used by the nurse to complete the MDS.

5. Residents’ rights Residents’ Rights Quality of Life
Services and activities
Fully informed about rights and services
Participate in his or her own care
Informed consent
Make independent choices
Privacy and confidentiality
Dignity, respect, and freedom
Security of posessions
Transfers and Discharges
Complain
Visits
Social services
Residents’ rights provide a code of conduct for resident treatment in care facilities. A copy of these rights is provided to residents and they are reviewed with each resident. As healthcare workers, we must be familiar with these legal rights. We will now discuss each of the Resident’ Rights.
Quality of life – Residents have a right to the best care available. Many of the other residents’ rights help provide for quality of life.
Services and activities must help the resident maintain a high level of wellness - Residents must receive the correct care. To help assure that each resident receives the care he or she needs, facilities, along with resident input, develop a care plan for each resident. The care plan must be followed by all healthcare workers. A resident’s health should not decline as a direct result of the facility’s care.
The right to be fully informed about rights and services – Residents need to be made aware of the services avaialbe at a care facility and what the fee is for each of the services. Residents must be provided a written copy of their legal rights as well as any facility rules and regulations. Contact information for state agencies related to quality of care (ex: ombudsmen) must be provided to residents, as well. Survey results must be made avaialbe to residents upon request. Residents have the right to be notified in advance of a change in room or roommate. They also have the right to communicate with someone who speaks their language and to have sensory impairments accommodated.
The right to participate in their own care – Residents have the right to participate in planning their treatment, care, and discharge. They have the right to refuse medication, treatment, care, and restraints. Residents have the right to be told of changes in their condition and to make informed decisions regarding their care. This is informed consent. Informed consent is the process by which a person, with the help of a doctor, makes informed decisions about his or her care.
The right to make independent choices – Residents can make choices about their care (ex: doctors, care, and treatments) as well as personal decisions (ex: what to wear, how to spend their time, activities to be involved in). They have the right to participate in a Resident’s Council – a group of residents who meet regularly to discuss issues related to the long-term care facility. Many topics can be discussed by the council – from quality of care to the types of activities offered at a facility. Think of all of the decisions, large or small, that you make in a day. Residents have the right to make these same decisions for themselves.
The right to privacy and confidentiality – Residents have the right to privacy while care is given. We can do this by shutting doors, pulling curtains, and taking residents to their rooms for certain treatments and activities. Residents’ medical and personal information cannot be shared with anyone outside of the care team. Residents also have the right to private, unrestricted communication with anyone they choose.
The right to dignity, respect, and freedom – Residents must be respected and treated with dignity by caregivers. We should call residents by the name they wish to be called (Mrs. Jones versus Anna; Francie versus Francis). Residents cannot be abuse, mistreated, or neglected in any way.
The right to security of possessions – Residents’ personal posessions must be safe at all times. Posessions cannot be taken or used by anyone without a resident’s permission. Residents have the right to manage their own finances or choose someone to do this for them. They may ask that the facility handle their money; if they do so, residents must have access to their accounts and financial records.
Rights during transfers and discharges – As previously discussed, residents must be made aware of any location changes. Location changes must be made safely. Residents can be moved from the facility due to safety reasons (either their own or others’), if their health hs improved, or if payment for care has not been received.
The right to complain – Residents have the right to voice grievances without fear of punishments. Facilities must work quickly to resolve complaints.
The right to visits – The care facility is the residents’ home. Just like you may enjoy entertaining visitors in your home, residents have the right to enjoy visitors in their home, too. Visitors may include doctors, family members, friends, clergy members, legal representatives, or any other person.
Rights with social services – The facility must provide residents with access to social services like counseling, legal and financial professionals, etc.
It is important that the NA understands these residents’ rights as each resident has a legal right to each of these things. Failure to provide for these rights may result in termination of employment and legal charges.

6. Abuse and Neglect Abuse Neglect Physical Psychological Sexual
Financial
Neglect
According to the National Center on Elder Abuse (2005), one to two million elders suffer abuse or neglect every single year. Furthermore, 11% of older people living in community settings had experienced some form of abuse or neglect during one year (The National Institute of Justice, 2009). Yikes! That number is high! As members of the healthcare team, it is our responsibility to be advocates for the residents in our care. To do so, we must be educated on the types of abuse and signs that an individual is being abuse. We have a legal duty to report any suspected abuse to the charge nurse. Let’s look at the different types of abuse.
First of all, what is abuse and neglect? Abuse is purposeful mistreatment that causes physical, mental, or emotional pain or injury to someone. Neglect is also a form of abuse. Neglect is the failure to provide needed care that results in physical, mental, or emotional harm to the purson. Abuse is harming someone by doing something you shouldn’t do, whereas neglect is harming someone by NOT doing something you SHOULD do. We will talk about the types of abuse first.
Physical abuse is treatment, whether intentional or unintentional, that causes harm to a person’s body. This can include hitting, cutting, slapping, physically restraining, or even rough handling.
Psychological abuse is emotional harm caused by threatening, scaring, humiliating, intimidating, isolating, or insulting a person.
Verbal abuse, a form of psychological abuse, is the use of spoken or written words, pictures, or gestures that threaten, embarrass, or insult a person.
Sexual abuse is the forcing of a person to perform or participate in sexual acts against his or her will.
Financial abuse is the improper or illegal use of a person’s money, possessions, property, or other assets.
There are several abusive behaviors that fit within these types of abuse.
Assault is a threat to harm a person that results in the person feeling fearful that he or she will be harmed. For example, telling a resident that you will hit them if he or she doesn’t stop putting the call light on.
Battery is the intentional touching of a person without his or her consent. Forcing a resident to eat is considered a form of battery.
Domestic violence is abuse by spouses, intimate partners, or family members. Domestic violence can involve physical, psychological, or sexual abuse. Age and gender are not used to determine domestic abuse.
Workplace violence is abuse of staff by other staff members, residents, or visitors. Again, it can involve verbal, physical, or sexual abuse.
False imprisonment is unlawful restraint that affects a person’s freedom of movement – both the threat of being physically restrained and the act of being restrained. Not allowing a resident to leave the facility is also considered false imprisonment.
Involuntary seclusion is the separation of a person from others against the person’s will. An example of this would be the NA confining a resident to his or her room.
Sexual harassment is any unwelcome sexual advance or behavior that creates an intimidating, hostile or offensive working environment. Sharing dirty jokes in the break room could be labeled as sexual harassment.
Substance abuse is the use of legal or illegal drugs, cigarettes, or alcohol in a way that harms oneself or others.
Let’s talk about neglect. Remember that neglect is causing harm by failing to do something that you should have done. Neglect can be active or passive. Active neglect is the purposeful failure to provide needed care, resulting in harm to a person. Here is an example: Mrs. Jones is bedridden and her care plan calls for her to be repositioned every 2 hours. She is very particular about how she gets positioned and repositioning her takes more time than doing so for other residents. The NA is in a hurry today and decides it would be easier to skip Mrs. Jone’s 1400 repositioning. Mrs. Jones develops skin breakdown as a result of not being repositioned. This is an example of active neglect.
Passive neglect is the unintentional failure to provide needed care, resulting in physical, mental, or emotional harm to a person. Mr. Larson is a new resident who requires assistance with oral care, though he is independent with most of his other activities of daily living. The NA is not aware of this, and Mr. Larson does not receive the needed oral care. Should Mr. Larson develop complications because of this, the NA would be guilty of passive neglect.
Negligence means actions, or the failure to act or provide the proper care for a resident, resulting in unintended injury. (Ex: The NA forgets to lock the wheelchair, and as a result, the resident falls during transfer).
Malpractice occurs when a person is injured due to professional misconduct through negligence, carelessness, or lack of skill.
It is important that NAs never abuse residents in any way. NAs are also held legally responsible for reporting suspected abuse or neglect to their direct supervisor. If no action is taken, the NA must continue reporting up the chain of command. Should no action be taken at the facility level, the NA should call the state abuse hotline.
NAs are in the perfect position to observe and report abuse or neglect. As mandated reporters, NA are legally required to report suspected or observed abuse or neglect because they have regular contact with vulnerable populations (the elderly).

7. Behaviors supporting and promoting residents’ rights
Guidelines for protecting Resident’s Rights
There are guidelines that NAs can follow to assure protection of residents’ rights. Here are a few of those guidelines:
Never abuse a resident physically, emotionally, verbally, or sexually.
Watch for and immediately report any signs of abuse or neglect.
Call the resident by the name he or she prefers.
Involve residents in planning.
Always explain a procedure to a resident before performing it.
Do no unnecessarily expose a resident while giving care.
Respect a resident’s refusal of care.
Tell the nurse if a resident has questions, concerns, or complaints about treatment or the goals of care.
Be truthful when documenting care.
Do not talk or gossib about residents.
Knock and ask permission before entering a resident’s room.
Do not accept gifts or money from residents.
Do not open a resident’s mail or look through his belongings.
Respect residents’ personal possessions.
Report observations about a resident’s condition or care.
Help resolve disputes by reporting them to the nurse.
Ultimately, remember the golden rule: Treat your residents and their beongings how you’d like yourself and your belongings to be treated!

8. Complaints of abuse
Nurse Aid Training Competency Evaluation Program (NATCEP)
The Nurse Aid Training Competency Evaluation Program (NATCEP) makes the rules about training and testing nursing assistants. While federal law dictates training requirements for NAs, state programs make sure that federal rules are being followed in facilities that receive payment from Medicare and Medicaid. Part of each state’s responsibility is setting up and running the nursing assistant registry, which keeps track of each nursing assistant working in that state.
If a NA is acused of abuse or neglect, the facility will investigate according to its own policies and procedures. If they determine abuse has occurred, a report must be made to the Nurse Aid Training Competency Evaluation Program.
The NA will be made aware of any complaint made about him or her to NATCEP and the NA can request a hearing. The NATCEP investigates each report, and determines whether or not to mark the NA’s record that he or she was abusive. Should the NA be placed on the abuse registry, he or she will no longer be eligible to work in a certified nursing facility. The registry is checked by facilities prior to hiring a NA, and will be notified of the abuse. Charges of abuse will follow you everywhere for the rest of your life.

9. Resolution of disputes and the ombudsman’s role
Older Americans Act (OAA)
An ombudsman is assigned by law as the legal advocate for residents. The Older Americans Act (OAA) is a federal law that requires all states to have an ombudsman program.
The facility’s ombudsman visits the facility and listens to the residents. He or she may also be called should a resident, or his or her family, have a concern. Ombudsmen can help resolve conflicts and settle disputes concerning residents’ health, safety, welfare, and rights. Ombudsmen typically do the following:
Advocate for Residents’ Rights and quality care
Educate consumers and care providers
Investigate and resolve complaints
Appear in court and/or legal hearings
Work with investigators from the police, adult protective services, and health departments to resolve complaints
Give information to the public
Besides filing complaints with the facility’s ombudsman, residents and their families can also file complaints with the state agency responsible for surveying the facility (usually the state’s department of health).

10. Hipaa and protection of residents’ privacy
Confidentiality
Health Insurance Portability and Accountability Act (HIPAA)
Protected health information (PHI)
Health Information Technology for Economic and Clinical Health (HITECH)
Residents have the right to privacy. To respect confidentiality means to keep private things private. In your role as a NA, you will learn confidential information about residents, involving personal, medical, and financial information. This information can not be shared with anyone other than those on the care team who need to know to provide care to the resident.
In 1996, the Health Insurance Portability and Accountability Act (HIPAA) was passed. It requires healthcare organizations to protect health information and outlines punishments if the rules to protect patient privacy are not followed. Under HIPAA, a person’s health information is called protected health information, or PHI. Examples of PHI include name, address, telephone number, social security number, address, and the medical record. Only people on the care team who must have the information to provide care or process recores should know a persons protected health information. This information must be kept confidential.
In 2009, the Health Information Technology for Economic and Clincal Health (HITECH) was signed into law. HITECH further defines protected items to include electronic health records (EHR), and increases civil and criminal penalties for sharing or accessing PHI. Penalties for violating HIPAA and HITECH range from $100 to $250,000 fines and prison sentences of up to ten years.

11. The patient self-determination act (PSDA) and advanced directives
Living will
Durable power of attorney for healthcare
Do-not-resuscitate (DNR)
In 1990, the Patient Self-Determination Act (PSDA) was passed as an amendment to OBRA. This law requires all healthcare agencies that receive Medicare and Medicaid funds to provide information to adults about their rights related to advance directives during admission or enrollment.
Advance directives are legal documents that allow people to choose what medical care they wish to have if they are unable to make those decisions themselves (living will). Advance directives can also name someone to make medical decisions for a person if that person becomes unable to do so themselves (durble powerof attorney).
A do-not-resuscitate (DNR) order is another tool that helps medical providers honor wishes about care. A DNR order instructs medical professionals not to perform cardiopulmonary resuscitation (CPR), a procedure done to restart a person’s heart and breathing.
Keep in mind that residents always have the following rights:
The right to participate in and direct healthcare decisions
The right to accept or refuse treatment
The right to prepare an advance directive
Information on the facility’s policies that govern these rights.

12. Review Law and ethics Omnibus Reconciliation Act (OBRA)
Residents’ rights
Abuse and neglect
Behaviors supporting and promoting residents’ rights
Complaints of abuse
Resolution of disputes and the ombudsman’s role
HIPAA and protection of residents’ privacy
The Patient Self-Determination Act (PSDA) and advanced directives
In this chapter, we have discussed law and ethics, and have defined OBRA and the requirements layed out by this law. We have discussed Residents’ Rights and the behaviors that support and promote these rights. We defined abuse and neglect and learned that NAs are mandatory reporters of abuse and neglect. We discussed what happens when complaints of abuse are made, and the role of the ombudsman in resolution of disputes and complaints. Patient privacy is protected by HIPAA, and we discussed ways to maintain resident privacy. We discussed advanced directives, including durable power of attorney and living will, and explained how the Patient Self-Determination Act protects resident rights in regards to advanced directives.