If you don’t know, don’t ask the licensing board
Politics, lack of knowledge cloud practice issues
If you are wondering what services your unlicensed personnel can perform in a particular state and the statute does not specifically tell you, you might consider asking the state board of nursing directly. But that may not be the wise thing to do, says a home care attorney. "Whenever you raise [scope of practice] issues, you’re working uphill against politics and against a lack of knowledge about home care, says Elizabeth E. Hogue, JD, a health care attorney specializing in home care in Burtonsville, MD.
Although some states have clarified the scope of practice issue by adding language specific to the delegation of activities by RNs to unlicensed personnel, many statutes don’t delineate what services unlicensed personnel can legally provide. (For more information about Texas’ delegation laws, see story, p. 31.)
"Clearly you need to look at the practice act in the particular states where you are providing services and decide what is within the scope of practice of unlicensed personnel. But when you look at those statutes, it is sometimes impossible to tell what is permitted and what is not because the language of those practice acts tends to be very broad and vague," Hogue says. The acts often are vague because the legislature doesn’t want to get involved in addressing specific issues and specific concerns, she adds.
Asking the state licensure board what is and is not allowed in terms of delegation, however, is a "double-edged sword" for providers, Hogue says. Some of the problems she has encountered when approaching Boards of Nursing about scope of practice issues include the following:
• Lack of knowledge about home care.
Boards of nursing can be "woefully uncertain" about what home care is and how it operates, says the home care attorney. During a conversation with one state board about scope of practice issues, board members asked, "Can’t you address this issue in the contracts you negotiate with doctors to provide services to patients?"
"Of course, home care agencies don’t negotiate contracts with doctors to provide services to patients," Hogue explains. "This came as a revelation to this particular board of nursing."
In addition, many boards of nursing are made up of members with a focus and background in acute care. "[The ideal situation would be] at least one home care representative on every state board of nursing," Hogue says. "And given the prevalence of home care now, that’s not an unreasonable thing to think about or to expect. It just has not happened.’
"We can all sit back and say, It sure is time for nursing to wake up and for those boards of nursing to get out of their old rut and be prepared to deal with some of these new models of care,’ but it’s certainly a steep hill we’re climbing."
• The politics of scope of practice.
Once you start asking boards of nursing what can be delegated and what cannot, you’re inevitably in the midst of a real turf war the politics of scope of practice issues, Hogue says.
Nurses from acute care settings are sensitive to the delegation issue. They’ve lost jobs and may perceive that delegation of nursing functions to unlicensed personnel will place their jobs in jeopardy, Hogue says.
"I wish they had more of a perception of the growth of home care and less of a perception of being threatened," she says.
• Slow response time.
Although you’ll get an answer, it often takes a great deal of time, she says. Worse, Hogue adds, because of the politics and the lack of knowledge about home care, you may get an interpretation that you don’t want to hear. "In some sense, you are picking your poison," she says. The alternative is to stand on an interpretation you consider reasonable.
Also, your inquiries may come back to haunt you if the board at some point revises its interpretation. "When you ask the question, the board of nursing is going to infer that you want to know for a reason. If they suspect that you are engaging in conduct that they ultimately decide not to sanction, you haven’t done yourself any favors," Hogue says.
That’s not to say you should ignore your state’s nurse practice act and allow unlicensed personnel to provide care that may be considered a licensed activity and open your agency up to the threat of prosecution. Instead, Hogue suggests private duty providers take the following steps to protect themselves:
• Talk to other providers in the state.
Providers that have questions about what lies within a state’s scope of practice act should talk to other providers in the state, she advises. These providers can tell you not only how they decided which services their unlicensed personnel could provide, but also who is on their board of nursing and how the board has addressed the scope of practice issue previously. You can also find out whether someone has already asked the board the question you would like answered, and if not, whether the question has been asked or could be asked informally of one or more members of the board to test the waters.
"There’s a lot to be said for getting the lay of the land’ in a particular state before you decide what course of action to take," says Hogue.
• Approach the nursing board and ask questions as a group.
"There’s always safety in numbers," Hogue explains. "If a group of private duty agencies get together and decide to ask the question, the board cannot single out one provider."
• Seek a written opinion from an attorney.
If providers are serious about standing on a "reasonable" interpretation of the statute, Hogue says, they can limit their risk by seeking a written opinion from an attorney. "Put [the opinion] in the file and if anyone ever complains, it is always helpful to say, Look what I have in my file an opinion from an attorney who reviewed the statute and who says this is a reasonable way to proceed.’"
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