Nursing Education & Law
Alice E. Dupler, J.D., APRN-BC
Clinical Associate Professor
Enduring Understandings?
• Like nursing, law is based on guiding values and
beliefs, the interpretation of which are fluid in a global
society
• Unlike nursing, interpretation of law will not change
absent evidence meeting a predetermined burden of
proof
• Nursing educators are the nexus through which the
profession evolves legally into the entity it will be in the
future
Concepts and Competencies
• Faculty will be able to describe and legally define:
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Statutory & case law governing nursing & nursing education
Shared governance by faculty and students
Academic freedom in class and clinical settings
Protections against personal liability
Academic freedom and scholarship
• Faculty will learn a strategy to assure course syllabi are
consistent with law, and, university and college policies
• Faculty will know how to consistently apply best practices for
admission and progression of students based on case law
Consensus Policy Statement on the Educational
Advancement of Registered Nurses
Nursing workforce requires:
‘Integration of evidence-based, clinical
knowledge and research with effective
communication and leadership skills’
Call to action
 System changes in nursing practice and education
 Life long learning by registered & advanced nurses
 Funding for educational initiatives
Tri-Council for Nursing
(AACN, ANA, AONE, NLN)
5-14-2010
We Say We Teach: Evidence Based Practice
• Conscientious use of current best evidence in making
decisions about patient care
• EBP Components:
• Systematic search for and critical appraisal of the
most relevant evidence to answer a clinical
question
• One’s own clinical expertise
• Patient preferences and values
Melnyk & Fineout-Overholt, 2005
Nursing and Nurse Educators
who do we think we are?
http://www.youtube.com/watch?v=N
oaqf-JE3UI&feature=fvw
Moment for reflection for nurses & educators!
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Who were we legally?
Who are we now legally?
Who are our clients?
Who are our students now?
How has nursing education changed
legally to meet their needs?
Is there a disconnect?
 Is there a disconnect between what we believe to be
nursing and what it is legally in practice?
 As a classroom or clinical instructor, do we assure the
public’s trust and facilitate personal and professional
accountability?
 What if Josie King was your S1 student’s patient?
http://www.qsen.org/video/josieking/
The Law
The Basics!
‘It’s all about the evidence’
Health Law & Regulation
• State
– RCW / WAC
– Licensing
• People (RN, ARNP)
• Places (Hosp, NH, BH)
• Professional Programs
– Enforcement
• Commissions
• Inspections
• AGs & ALJs
– Civil
• Licensure/Fines
– Criminal
• Battery/Homicide
• Federal
– Code / CFR
– Certify
• Care Services (MC / Mc)
• Places (Labs, HHA)
– Enforcement
• Health & Human Services
• Joint Commission
– Civil
• MC/Mc Fraud
• Civil Rights
– Criminal
• Intent to Deny Rights
Nursing
&
Nursing Law
Florence Nightingale (1859)
‘Nursing is to put the patient in the best
condition for nature to act upon him’
American Nurses’ Association Social
Policy Statement
(National Certification Body)
Nursing is
• Protection, promotion and optimization of health
& abilities, prevention of illness and injury,
• Alleviation of suffering through the diagnosis &
treatment of human response, and
• Advocacy in the care of individuals, families,
communities & populations
Registered Nursing Practice
(RCW 18.79.040(1))
(Washington State Licensure Body)
Nursing is
the performance of acts requiring substantial
specialized knowledge, judgment and skill
based on the principles of the biological,
behavioral, and sociological sciences in
either….
Registered Nursing Practice
(RCW 18.79.040(1) (con’t)
• The observation, assessment, diagnosis, care or counsel,
and health teaching of the ill, injured, or infirm, or in the
maintenance of health or prevention of illness of others;
• The performance of additional acts…proper…to be
performed by a registered nurse…;
• The administration, supervision, delegation and evaluation
of nursing practice.
Advanced Registered Nursing Practice
RCW 18.79.050
"Advanced registered nursing practice" means the performance of
the acts of a registered nurse and the performance of an expanded
role in providing health care services as recognized by the medical
and nursing professions, the scope of which is defined by rule by the
commission...Perform specialized and advanced levels of nursing …
Upon approval by the commission, an advanced registered nurse
practitioner may prescribe legend drugs and controlled substances
contained in Schedule V of the Uniform Controlled Substances Act,
chapter 69.50 RCW, and Schedules II through IV subject to RCW
18.79.240(1) (r) or (s).
‘Advanced Nursing Practice’
WAC 246-840-299
• The delivery of expert nursing care by
registered nurses who have acquired
experience and formal education in
specialized areas. A nurse with this
preparation may qualify as ARNP as
delineated in WAC 2460840-300
Determine Differences in Scopes of Practice
Standards of Nursing Conduct or Practice
WAC 246-840-700
 Each individual upon entering the practice of nursing, assumes a
measure of responsibility and public trust and the corresponding
obligation to adhere to the professional and ethical standards of nursing
practice.
 The nurse shall be responsible and accountable for the quality of nursing
care given to clients.
 This responsibility cannot be avoided by accepting the order or directions
of another person. Refer to the map!
Uniform Disciplinary Act
RCW 18.130
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Failure to adhere to standards
Failing to assess, evaluate or institute action
Willful or repeated failure to report or document
Willful or repeated failure to make entries
Willfully causing or contributing to physical or emotional abuse
Sexual misconduct
Failure to protect from unsafe practices or conditions, abusive acts,
and neglect
Failure to supervise delegated persons
Violating confidentiality
Willfully abandoning clients
Violations of standards of practice
The nurse shall have knowledge of the statutes and
rules governing nursing practice and shall function
within the legal scope of nursing practice
Nursing Law in a Nutshell!
• Nursing is defined by the ANA & state approved certifying bodies
• States define nursing in statute & regulation based on nursing’s definition, and,
geographically agreed upon scope of practice
• In so doing, the legal obligation of ‘duty’ is established
• As determined by what a reasonably prudent RN or APN would do under similar
circumstances, a breach of the statutory duty may occur
• If the breach of duty is the proximate and legal cause of harm, damages may be
awarded
• Legal standard of evidence may be: preponderance of evidence
clear and convincing evidence
beyond a reasonable doubt
So you think you might sue or be sued?
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Lexis-Nexis search – nursing w/1 student or faculty (34 appellate cases in 10
years)
Programmatic claim - Decertification of program
Faculty claims - Violation of contract / Denial of tenure / Preceptor liability
Student claims (themes – violation of due process, discrimination, contract)
– Academic performance
• Clinical work / practicum failure
• Privacy – OB blog re patient
– Student Conduct
• Plagiarism – graduate student research
• Cheating – access to exam answers through faculty
• Sexual misconduct
– Other - Nursing faculty and student as witnesses
Higher Education and Nursing
Connect the dots!
Higher Education in the United States
(Federal law)
• Constitutional protections are not unrestricted
– First amendment right – free speech
– Fourteenth amendment right to liberty & property
interests unless due process provided
• Federal statutes – when Federal $$$ allocated,
Federal law applies
– Student scholarships and loans
– ADA and AADA
– Firearms and weapons
Higher Education in Washington State
(State law)
• Title 28B Higher Education
• Chapter 28B.30 RCW Washington State University
(Regents / Management)
• Chapter 28B.76 RCW Higher education coordinating board
• Chapter 18.79 RCW Nursing Care – Accrediting Bodies
– Nursing Commission
– Nursing Programs / Faculty Quals
• American Colleges of Nursing Education
• CCNE
Shared Governance
• Primary responsibility for the teaching & research missions of the
university rest with the academic faculty
– Academic planning (faculty/program development and evaluation)
– Curriculum development (quality assurance / professional
accountability)
– Institutional and college governance (mission, values, policies and
procedures-manuals, outcomes, benchmarks)
– Peer review for tenure and promotion
• Faculty has a voice in governance through the College Faculty
Organization and Faculty Senate
• Matters of public concern test
• Official duties test
Washington State University
• University
– Faculty Manual
• Code of Professional Ethics
• Duties and Availability
– Educational policies and procedures manual
– Business policies and procedures manual
• College of Nursing Faculty Manual
– Appointment, Promotion and Tenure
– Faculty and student codes of conduct
Academic Freedom
Statement of Principles on Academic Freedom
(1940, 1970 rev)
Teachers are entitled to freedom in the classroom in
discussing their subject, but they should be careful not
to introduce into their teaching controversial matter
which has no relation to their subject. Limitations of
academic freedom because of religious or other aims of
the institution should be clearly stated in writing at the
time of the appointment.
Academic Freedom
• Legal origins
– 1800s: professions forming
– 1915 AAUP formed
– 1940 Principles disseminated
– Adler v. Board of Education in 1952
• Academic custom and usage
• Faculty : Student legal relationship
Faculty : Student Legal Relationship
The rights of students and faculty!
Historical Denial of Student Rights
• Beneficiary theory
– Students are the beneficiaries of faculty knowledge and should
not question what they are being told
• Privilege theory
– Students are privileged to be in academic setting and should
not be able to legally challenge faculty actions re: student
performance
• In loco parentis doctrine
– In the academic setting, faculty act ‘as parents’ in disciplining
students and therefore, their actions should not be challenged
Fourteenth Amendment!
‘no state can deprive a person of life, liberty,
or property without due process of law’
– Due process = generally what is fair under the
circumstances
– Only applies to public entities (‘state action’) unless $$$
accepted by private entity
Due Process Cases!
Limited to academic conduct and discipline
• Dixon v. State of Alabama (1961)
– 6 students dismissed for ‘misconduct’
– Supremes → notice & hearing prior to dismissal
– Notice specific to allegations and basis for action
• Names of witnesses provided to student
• Date, place and time
• Written copy of findings
– Hearing - opportunity to present respective positions
• Goss v. Lopez (1975)
– Emergency suspension (24 hr notice; 72 hr hearing)
Your case!
• Nancy Nervous admitted with advanced academic standing;
completed her J1 classes at another university; withdrew in good
standing due to ‘illness’
• At end of J2 semester, informed by dean in writing that she was
being placed on academic probation due to ‘poor performance’
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Poor relationships with others
Erratic attendance during clinical
Poor personal hygiene
Needed to improve but with UAP’s approval, could advance to S1;
continued on probation through S2.
• At end of S2, faculty ‘still dissatisfied’, failed practicum and
recommended Nancy ‘sit out a year’ and retake S2 coursework
Nancy sues and alleges!
• 1983 claim – violation of civil rights
– Property interest in education
– Liberty interest in reputation
– No due process
• Moment for reflection!
– What should the evidence reflect?
– What will you do?
– What will the court decide?
University of Missouri v. Horowitz (1978)
Supremes held:
 Faculty student relationship is based on expert
evaluation by faculty about the student’s progress and is
cumulative in nature (progression through program)
 So long as action not arbitrary or capricious, courts are
‘ill-equipped’ to evaluate academic performance and will
not intrude into academic decision making
 University’s decision was academic and not disciplinary;
therefore, notice but no hearing is required
University of Missouri v. Horowitz (1978)
Supremes guidance:
• Notice is required regarding
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Academic performance
What must be improved upon
Under what time frames
Consequences and impact on progression if unmet
• No hearing required but can be afforded
• Dismissal must not be disseminated publicly
• So long as not arbitrary or capricious, courts will support
faculty progression decisions
The rest of the story!
• Stella Sneaky allegedly cheated on an exam by obtaining answers to two
of the questions from a faculty member teaching the course and
changing her paper prior to turning it in.
• Five days later, she was informed by the dean that she had been
accused of cheating and could either take an F for the course or appear
before the university student court.
• She appeared before the court; she was found not guilty and the
chancellor’s office was notified per procedure of this determination.
• Legal counsel for the university filed an objection
• Chancellor requested assistant chancellor to review both determinations
• Chancellor subsequently found student guilty and student received an F
• Stella was unable to register for classes the next semester .
Stella sues and alleges!
• 1983 claim for violation of constitutional and civil
rights
• Violation of due procedural due process rights
What now????
Jones v. Board of Governors of
University of North Carolina
• Courts will allow for ‘great deference’ so long as
‘rudimentary precautions against unfair or mistaken findings
of misconduct and arbitrary exclusion from school does not
occur’
• In this instance, student would suffer ‘irreparable injury’ as
compared to university’s potential harm with reinstatement
under appeal
• Arguably irregular proceedings occurred; ‘stark divergence
from procedures’…procedural due process violated.
Your next case!
• Marcia Murphy, who had a serious hearing disability, sought to be
trained as a registered nurse and enrolled at a college.
• Marcia was denied admission to the nursing program because the
college determined that she could not safely participate in a
normal clinical training program due to her disability, and that
ultimately it would be unsafe for her to practice as a nurse.
• The college also determined that any modification in the training
program to enable the individual to safely participate would
prevent her from realizing the benefits of the program.
Marcia sues and alleges!
• The college, which received federal funds, violated §
504 of the Rehabilitation Act of 1973, codified at 29
U.S.C.S. § 794.
• The college violated her 14th Amendment rights to due
process and equal protection under the law
Southeast Community College v. Davis (1979)
Supremes held:
• Although Rehab Act prohibits discrimination when school receives
federal funding if student is ‘otherwise qualified’ and can be ‘reasonably
accommodated’, student here was not ‘otherwise qualified’ (essential
functions) and required accommodation would be too expensive,
especially given the clinical component of the program.
• 504 imposes no requirement upon an educational institution to lower or
effect substantial modifications of its standards in order to accommodate
handicapped persons; the institution's unwillingness to make major
adjustments in its nursing program to accommodate the individual did
not constitute unlawful discrimination.
Americans with Disabilities Act
Section 504 of the Rehabilitation Act
Americans with Disabilities Act Amendments Act 2008
• A student with a disability is a person who has, or is regarded as having:
– a physical or mental impairment
– which substantially limits a major life activity
• Two part test:
– First, the student must demonstrate a physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the … body systems.
– Second, the student must establish that this impairment substantially
limits the student’s capacity to provide self-care, or, to perform
manual tasks such as the ability to walk, see, hear, speak, breathe,
learn or work.
Students with Disabilities
• Although a student may meet this definition the law does not assume that a
student with a disability is able to meet the requirements of an educational
program
• The law requires only that an ‘otherwise qualified individual’ not be
excluded because of the disability.
• To determine whether a student is ‘otherwise qualified’, faculty must clearly
define the essential competencies of nursing which include: abilities
required to observe and communicate, physical capacity and motor skills,
intellectual capacity and cognitive skills, behavioral, social, and
professional attributes, and decision-making skills.
• The essential functions provide the basis for admission and progression
decisions. Must be clearly stated and accessible to students.
Nursing students today
• Currently, law clearly protects students under the Rehab Act, the
ADA, and the ADAAA, so long as the student has a physical or
mental impairment that substantially limits a life activity and the
student can perform the essential functions required of a nurse
with or without reasonable accommodation.
• An accommodation is an adjustment or modification to an activity,
course, program, service, or facility that enables a qualified
student with a disability to have an equal opportunity to
demonstrate the capacity to successfully complete the educational
program in which they are enrolled
Faculty Strategies for Success!
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Prospective students are not required to disclose their disability and need for
accommodation prior to admission but they need to do so immediately upon
admission if they desire an accommodation.
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Notice of this requirement should be included in admission letters sent to all
students with directions for accessing information regarding the process required
by the university and the college to provide timely determination of the disability
and subsequent accommodations to facilitate the student’s successful completion
of the program.
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A statement for students requiring accommodations while completing required
coursework should be included in each course syllabus.
Faculty Strategies for Success!
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Academic adjustments may include priority registration, a reduced credit load, substitution
of one course for another and extended time for testing.
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Following admission to the nursing program and approval of a student’s request for an
accommodation, the student must voluntarily inform the faculty of record for each class in
which they are enrolling of their need for an accommodation.
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Strategies are typically integrated into academic admission and progression procedures,
theoretical course content delivery, or clinical placement assignments. They include note
takers, interpreters, videotext displays, Braille calculators, assistive listening devices,
telephone handset amplifiers, institutional computers with screen reading, voice recognition
and other hardware or software.
Faculty should know
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The college is not required to fundamentally alter the nature of the nursing
program or incur undue administrative or financial burdens.
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A nursing program is not legally required to substantially modify essential
requirements such as excusing students from core classes required of all
students.
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Extended time may be given a student to complete a test; however, faculty are
not required to change the content of the test to accommodate the student’s
needs. Testing must measure the student’s knowledge rather than the extent of
the student’s disability.
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Assistive devices must effectively meet the needs of the student; however,
colleges are not obligated to provide the most sophisticated aid available.
Clinical faculty should know
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a nursing program is not required to provide a personal attendant for clinical
supervision, tutoring or typing
a student with a disability may not require a program to provide individually
prescribed devices or services of a personal nature
although the student is not required to discuss the disability and adaptations
prior to the clinical rotation, it may be prudent to meet with faculty and, when
appropriate, with agency staff in advance of the placement.
plans for clinical assignment and accommodation should be made jointly,
considering both the student and agency needs
Best practice - carry telephones with text messaging capabilities to provide
immediate communication. Text messaging allows the student with a hearing
disability, as well as faculty and agency staff, to feel more at ease by facilitating
immediate access to clinical faculty
Another case!
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Ellen Energetic, a 51 year old former lab tech and president of the hospital’s
volunteer organization, was admitted to a pre-licensure nursing program
J1 and J2 went well; however, there seemed to be a clash between her alleged
attitude of ‘thinking she knows more than she does’ and her instructor’s alleged
‘resenting (her) from the beginning because of her knowledge and health care
experience.’
During her S1 rotation, Ellen contaminated the newborn nursery; several weeks
later, she was allowed to withdraw rather than receive an F because ‘she didn’t
‘maintain cleanliness.’ She was given an opportunity to retake the course; she
successfully passed
During S2, she failed to maintain sterile procedure during a dressing change and
received an F. The faculty member refused Ellen’s appeal to convert this to a W
After the UAP committee could not unanimously agree re Ellen, the dean
terminated her enrollment from the program
Ellen Sues and Alleges!!!
• 1st amendment violation of free speech
• 14th amendment violation of
– Due process
– Equal protection / liberty
• Age discrimination
• Civil rights act (1871) – ‘personal animus and ill will’
• Breach of contract
– Unfair grading
– Inaccurate anecdotal faculty notes
What will you do!
Clements v. County of Nassau
• Dean’s decision was academic and not disciplinary in nature; ample
notice over time was given – no due process violation
– Court’s will not overturn academic decisions unless there is a ‘clear departure from
accepted academic norms so as to demonstrate that the person or committee
responsible did not actually exercise professional judgment’
– College grievance process was adequate
• Academic standards were ‘similarly situated’ for all students – no equal
protection violation
• Faculty notes were not used for grading and not disseminated to public –
no liberty violation
Southwell v. U of Incarnate Word
• ‘failure to pass course based on the faculty member’s daily
assessments of student performance and were therefore
entitled to be relied upon when deciding that the student
would not pass the course and would be dropped from the
program’
• Courts continue to support faculty rights to make judgments
and assign grades for academic progression and
termination from program
BUT – Contract Law Applies!
• Offer – consideration – acceptance
• Verbal v. written
• Modification of offer – consideration - acceptance
Your next case!
• Susan Senior who had a 3.5 GPA was absent for several days to care
for a terminally ill friend. The course syllabus and the student manual
indicated that clinical absences would result in failure of the course. She
was verbally assured that she would receive an ‘I’ rather than an ‘F’ for
the course; alas, her instructor entered an F on her grade report.
• Susan appealed and received a letter from the Dean stating she could
continue to progress through the program while the appeal was pending.
• Subsequently, the UAP committee did not recommend conversion of her
grade and the Dean subsequently dismissed her from the program.
• Susan then appealed the grade & dismissal based on breach of contract
Now what the heck should you do???
Lots of law on this one!
• University and college p/p manuals and syllabus form the basis for
contract; dean’s letters do not.
• Modifications of manuals and syllabi after publication to students will
likely not be upheld when student is ‘harmed’
• Syllabi should provide for ‘notice’ and ‘hearing’:
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Name and credit hours of course
Instructor contact info and hours of availability
Objectives/competencies that form basis for evaluation
Method for evaluation and scale for grading
Required preparation for topics to be covered
• A fun case – student sued because faculty failed to round up from 69.713
to a passing score of 70%; since faculty had not ‘acted’ – no court action
required
Whew! We did it!