FROM THE EDITOR
Why Are Nurses Leaving Clinical Nursing? Not Because of ER!
by Vickie L. Milazzo, RN, MSN, JD
Recently, Baltimore's Center for Nursing Advocacy started a letter-writing campaign against NBC and the producers of ER. This group was protesting the episode where a central character, nurse Abby Lockhart (actress Maura Tierney), chucked her nursing career to go to medical school. The Baltimore group claims the TV show "is perpetuating long-standing misrepresentations that are contributing to the nursing shortage."
I was surprised that this group blames a TV show for the nationwide shortage of registered nurses. I immediately wrote the Houston Chronicle to share my opinion with consumers. My opinion piece (summarized below) was published as the lead in the Chronicle's Outlook section.
Never mind the fact that ER – watched by 20 million viewers – is far from reality television. The notion that the show is contributing to the nursing shortage is simply untrue. This TV program could depict nursing as the most glamorous career on the planet and real RNs would still be leaving their hospital jobs in droves.
RNs are quitting because they are understaffed, underappreciated, underinsured, underpaid and under-you-name-it. Most nurses complain about the lack of respect from doctors. Sure you hear about record-breaking salaries and bonuses, but compared to whose record? At an average pay of $22 an hour, RNs are still among the lowest-paid professionals in this country.
Managed care is another reason RNs are leaving the bedside. It goes against everything our profession stands for. Under managed care, nurses are frequently denied the opportunity to deliver the quality of care they expect to deliver. Some patients die unnecessarily because nurses have too little time to spend with them. Yet when everything turns sour, RNs face more responsibility and liability than ever.
Many nurses I know endure nightmarish schedules, working 26 weekends and five holidays a year. Nurses also face serious on-the-job risks, such as bloodborne pathogens, latex allergies and back injuries from those long shifts pounding hospital floors and doing more lifting with less help. Isn't it ironic that the injured and disabled are treating the sick? No wonder nursing numbers are shrinking.
Speaking of disabilities, just look around at how many nurses smoke, drink and are overweight. Such symptoms of intense stress occur when people have too little time to properly care even for themselves.
Nurses are finding their own answers to these dilemmas. According to a recent American Nursing Association (ANA) poll, almost 19% of RNs do not work in clinical nursing. A study by the Center for Health Outcomes and Policy Research reveals more than 20% of hospital registered nurses plan to leave their jobs in the next year.
The significant development is not the fact that nurses are leaving or even why they're leaving – that's obvious. The news is where they are going. When nurses aren't valued in one arena, they take their nursing education and expertise and go elsewhere. They develop new careers outside traditional healthcare settings.
Maybe the Center for Nursing Advocacy should contemplate that fact. They might even suggest that ER present an episode about an RN who quits her hospital job to become a Certified Legal Nurse ConsultantCM.
Then those 20 million ER fans would really be watching "reality TV."
Here's to your starring role as a successful CLNC®!
Vickie L. Milazzo, RN, MSN, JD
PS: I hope this editorial inspires you to write your own op-ed piece. It pays to stay up with the news.
BEST PRACTICES FOR DISCOVERY
Are You Hip to HIPAA?
by Vickie L. Milazzo, RN, MSN, JD
As a CLNC® you may be puzzling over how implementation of the Health Insurance Portability and Accountability Act (HIPAA) affects your legal nurse consulting practice. The impact of HIPAA on your CLNC® business depends upon two factors:
Whether you are working on a defense or plaintiff case and
What stage of the litigation process a case is in (already a lawsuit or still under investigation).
Although HIPAA took effect on April 14, 2003, changes in rules, interpretations and methods of implementation are still shaping how this act will affect the legal world. Many HIPAA issues and questions will only be resolved with time.
HIPAA Protects Medical Record Privacy
HIPAA is a federal law intended to safeguard the privacy of patient medical records and protected health information (PHI). PHI includes both healthcare information and demographic information. HIPAA preempts state laws governing disclosure of medical or health information. However, if a state law is more stringent than HIPAA, the state law applies in addition to HIPAA.
HIPAA requires that a covered entity follow certain procedures before using or disclosing protected health information. Covered entities include:
Health plans, such as HMOs, self-insured employer group plans, health insurance companies, Medicare and Medicaid;
Healthcare clearinghouses, firms that translate health claim transactions from nonstandard to standard format; and
Healthcare providers – for example, nurses, physicians, pharmacists, hospitals or skilled nursing facilities – that electronically transmit certain health claim transactions.
HIPAA also affects business associates which are persons or entities that provide services to covered entities. These services can include claims processing, data analysis, quality assurance, utilization review, billing, practice management, legal services, etc. Under HIPAA a business associate can be anyone receiving or assessing PHI on behalf of a covered entity. Most medical malpractice defendants will be classified as covered entities or as business associates.
HIPAA requires that contracts between a covered entity and a business associate offer "satisfactory assurances" that the business associate will treat any PHI it receives with the same level of confidentiality or protection required of the covered entity. In return, the HIPAA-covered party may only disclose the "minimal and necessary information" required for the business associate to accomplish the purposes necessitating the disclosure. Your attorney-client (plaintiff or defense) may ask you to sign a business associate agreement (BAA).
HIPAA Affects When and How Anyone Can See Medical Records
HIPAA protects a patient's right to obtain a copy of their own medical record or to view the medical record upon request. Although institutions may establish the conditions under which the record is reviewed, plaintiffs will find it easier to access their own medical records under HIPAA.
Furthermore, HIPAA grants patients the right to know who has received access to their PHI. If you consult for a plaintiff attorney, it would be appropriate to advise your attorney-client to ask the healthcare provider to produce a list of people, companies and entities that have received the plaintiff's PHI. This can reveal additional possible players or defendants, or generate new strategic approaches to the case.
HIPAA requires healthcare providers to make a reasonable effort to give notice to anyone whose records have been requested, so they can object to disclosure of PHI before it takes place. Plaintiffs can waive their right to this notice in order to expedite the discovery process.
HIPAA Affects the Discovery Process
During discovery HIPAA will impact all parties, because both plaintiffs and defendants will be requesting medical records from a variety of covered entities, including hospitals, HMOs and physicians.
Any entity requesting individual medical records must have a specific medical authorization signed by the patient. This patient authorization must:
Clearly describe the scope of the protected health information (PHI) being used, the persons authorized to disclose the PHI and the persons authorized to receive the PHI;
Be revocable by the patient; and
Contain an expiration date or event.
A covered entity can use or disclose PHI without patient authorization only in limited situations:
In response to a court order, or
In response to a subpoena or discovery request, if the following conditions are met:
1.
The person or entity requesting disclosure made a good faith attempt to provide written notice to the patient;
2.
The notice included sufficient information about the litigation;
3.
The patient did not object to the court about the disclosure, or the court resolved all objections; and
4.
The time to object has elapsed.
HIPAA Compliance and Your CLNC® Cases
CLNC®s working in-house or as consultants for covered entities – hospitals, HMOs and insurance companies – will face the most compliance issues regarding HIPAA. CLNC®s working for law firms that may access PHI will also have compliance issues.
These issues will revolve not just around disclosure of information (in response to requests or subpoenas and during incident investigations), but also around retention and security of electronically transmitted PHI. Notices to plaintiffs will raise HIPAA compliance questions as well.
How much PHI should be disclosed? – Whether the request for records comes from the plaintiff or the defense, it is a burden for any healthcare provider to determine how much PHI to release. HIPAA compliance is a work in progress for all parties.
Defense law firms, which are designated as business associates under HIPAA, are often unwilling to produce as much of the medical record as plaintiff attorneys demand. When responding to discovery and investigatory requests from plaintiffs or other defendants, defense attorneys and the facilities they represent will run into questions regarding "minimal and necessary information" to be disclosed under HIPAA guidelines. The courts will define "minimal and necessary information" based on the prevalent rules of discovery.
Plaintiff law firms face the "minimal and necessary information" issue, too. Defense attorneys will seek plaintiff medical records that may reveal preexisting conditions or support alternative or creative defenses. In such cases the defense often demands more of the medical record than plaintiff attorneys deem necessary. Again, the courts will define what is "minimal and necessary."
How is patient information kept secure? – Law firms should have written policies for protection and retention of PHI. If you work for a plaintiff firm, a potential plaintiff may bring in medical records for review prior to filing suit. Although the client voluntarily releases these records to the law firm, you should treat the records as confidential and prevent their disclosure as zealously as if you were working in a hospital or any healthcare facility.
If you work for a defense firm or insurance company, you will probably have a business associate agreement with your client to address this issue. Be sure the BAA is in place prior to receiving a potential plaintiff's records for review.
For both plaintiff and defense firms, until suit is filed, the medical records fall under HIPAA and its requirements of confidentiality. However, once the suit is filed, those same records enter the public record of the case, and all vestiges of privacy are cast aside (barring protective orders). Regardless of when the case settles (before, during or after trial), as long as a suit has been filed, the relevant medical records have lost their privacy. Medical records not part of the public file still remain covered by HIPAA.
Does HIPAA cover records transmitted electronically? – PHI transmitted electronically (for example, from a hospital to its insurance carrier, or from a defense law firm to its contract CLNC®) are covered by the same HIPAA rules. Written law firm policies regarding protection of PHI should include requirements and security guidelines for archiving electronic communications containing PHI.
What notices to plaintiffs are required? – The defense attorney must notify the plaintiff or obtain a waiver of notice prior to obtaining records from the plaintiff's subsequent (and prior) treating providers. This may hold up progress during pre-litigation investigation and sometimes even during litigation. Defense CLNC®s may help their attorney-clients resolve this issue by reminding them either to issue the notice or to obtain the waiver. Plaintiff attorneys can easily include a waiver of notice from the plaintiff along with their discovery requests or requests for copies of medical records from any other provider.
What about announcing HIPAA compliance? – Some legal nurse consultants add a HIPAA compliance notice to their email "signatures." This compliance notice goes out on all their email including postings to listservs and even messages to friends and family. Legal nurse consultants participating in this poor business practice demonstrate their unfamiliarity with HIPAA. Since HIPAA compliance requires having written guidelines, security and archiving procedures in place, the savvy CLNC® doesn't use such a notice unless she's certain she is actually compliant, and then only on communications requiring the notice.
