Don’t risk prosecution, patient health by using UAP to provide licensed care
Determining what is a licensed activity is a sticky issue
As cost containment becomes more of an issue, many health care providers, including private duty agencies, are turning to unlicensed assistive personnel (UAP) to perform tasks normally designated for registered nurses. Although national media have publicized the use of UAP to perform nursing tasks in acute care settings, some private duty agencies may be risking prosecution for using UAPs.
"What’s driving a lot of the utilization of unlicensed assistive personnel has been in the acute care settings, with managed care and a capitated system and hospitals trying to compete for business," explains Susan Whittaker, MS, MRN, associate director of state government relations for the American Nurses Association (ANA) in Washington, DC. "Nurses have been replaced with unlicensed people to save labor costs."
Check with state board of nursing
The practice, going on for some time, has set off warning bells among health care professionals and consumers, and has renewed the debate of the trade-off between economics and public safety.
"The Board [of Nursing] legally establishes the scope of practice and says what are considered licensed activities," says Shirley Camp, RN, JD, executive director of the Georgia Board of Nursing in Atlanta. "Before you allow someone other than a nurse to do [a licensed activity] or delegate to them to do this, you must specifically have language within your state’s practice act that allows you to legally do that."
The Georgia Nurse Practice Act allows nurses to direct and supervise unlicensed personnel. The law, however, does not allow nurses to delegate licensed activities to UAP, a problem for families who require services that are considered licensed, such as management of intravenous fluids, but who cannot afford to pay for licensed home care.
"If these unlicensed people are compensated, they may be in violation of the Nurse Practice Act and could be prosecuted for a misdemeanor for unlicensed practice of professional nursing," says Camp.
The use of UAP to perform what are considered licensed activities also raises concerns about the quality of patient care. "From our point of view, we have some concerns with some of these things because we’re looking at quality of care and oversight of that care," says Whittaker. "We feel that it’s important for our nurses to be in that loop of care to provide oversight and make sure things are being done that are the most beneficial to the patient." (For an excerpt of the ANA’s position statement on the use of UAP, see above.)
One of the biggest gray areas for private duty providers is knowing what constitutes an unlicensed activity. The taking of vital signs, for example, went from being considered a medical activity, to a nursing activity, to, under most circumstances, an unlicensed activity. The administration of medication, however, is one task that is clearly delineated in Georgia’s nurse practice act as a licensed activity of professional nurses.
"The majority of the issues arising surround the administration of medication by unlicensed assistive personnel," says Camp.
It is difficult to label a task specifically as being licensed or unlicensed. An unlicensed person could assist a patient with a bath in the home, but a patient with a third-degree burn in an acute care setting might require the assistance of a registered nurse for a sterile bath.
33 states allow some delegation to UAP
That is why Georgia is working to get legislative language passed that would allow nurses to delegate licensed activities to UAP as appropriate. "The registered nurse would make the initial assessment and determine whether under these circumstances, with this medically stable patient, this is appropriate. In other circumstances, the same task may not be appropriate," Camp explains. More than 33 other states either have made statutory or regulatory change to allow for delegation to UAP. (See related story on UAP legislation, p. 3.)
A 22-member task force, called the Delegation to Unlicensed Assistive Personnel Task Force, has been working to create a conceptual model upon which the regulation of delegation would be based. In Georgia, it is the policy of the Joint Secretary for the Examining Division to have professional associations introduce scope of practice legislation.
Helping the disabled
A recommendation for exempting disabled people who hire unlicensed personnel to assist them with activities such as handing them medication or helping with catheters also was made by the task force.
"Do these activities constitute the practice of nursing?" Camp asks. "Or as you or I would be able to provide our own care and do whatever we wanted to ourselves, shouldn’t they have that legal authority to be able to direct what is being done to themselves since they are physically incapable of doing it themselves?"
Requiring RN supervision for the aides would be cost-prohibitive for many patients, who have chosen to try to live at home. The task force, therefore, made a recommendation that an exemption be made to the law in cases of someone engaging in "health maintenance activities" in a home setting.
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