Preceptor Preparation Online Course - Advanced

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Module 7: Legal and regulatory Considerations for the Preceptor

FAQ's Regarding Legal Implications for Precepting

Are students being precepted working on the preceptor's license?

This is a popular question from clinicians who work with students. Students are not working on the preceptor's license, and specific requirements must be met in order for negligence to be proven. It is determined by two things: first, by a breach in the standard of care, and second, by harm to a patient as a result of that breach.

The determination of whether a preceptor would be held liable for a harm that was caused to a patient by a student would be determined by whether the preceptor breached the standard of care or the educational standards in orientation and supervision of that student. If the preceptor did not breach the standard of care or the educational standard of care in orienting and supervising that student, then the preceptor is not liable, even if the patient in fact was harmed.

If the preceptor is covered by their employer's malpractice policy, should they carry additional personal malpractice insurance?

Opinions differ as to whether or not the preceptor should carry his or her own liability insurance. Many times, employers as well as their insurers will want a unified defense and therefore want the preceptor to be covered exclusively under the employer's liability insurance. They do not want a separate insurance carrier trying to shift blame for the preceptor's responsibility onto the employer. Therefore, employers will often try to dissuade preceptors from getting their own liability insurance.

It is important to remember that the employer's liability insurance only covers the preceptor if the preceptor is acting within the scope of employment. That means that the preceptor must be supervising students with the knowledge and the agreement of the employer. If this is something that the preceptor is doing on his or her own without the agreement or the approval of the employer, then the employer's liability insurance is unlikely to cover the preceptor. Likewise, if a preceptor moonlights that particular employer's liability insurance will not cover that preceptor. It may behoove the preceptor to consider an additional personal liability insurance policy that will cover his or her own actions outside the scope of employment. There are also types of insurance known as secondary insurance that may cover the preceptor where the employer's liability insurance coverage ends. The secondary insurance is usually less expensive and will be considered a supplemental rather than a primary policy.

How much liability insurance does a preceptor need?

The standard amounts of liability insurance are $1,000,000 per claim, $3,000,000 aggregate of claims in a policy year. However, if preceptors work in states where there are escalating caps on malpractice judgments and those caps keep rising, the preceptor may need additional coverage extending beyond the $1,000,000/$3,000,000 policy.

Can the preceptor be sued if the student makes a mistake?

Anyone can be named in a lawsuit. When litigation is filed in a malpractice lawsuit, the plaintiff's attorney and the person who is filing the suit, often take the shotgun approach and names all possible clinicians. They may sue the preceptor, the school, the facility and the student. Being found liable is a different story as liability centers on whether there was a breach in the standard of care. In this case, the educational standard of care, which entails supervising and orienting the student to patient care.

Are there specific laws in Maryland restricting what students can do in the clinical setting?

The Nurse Practice Act under HEALTH OCCUPATIONS § 8-301 - License Required; Exceptions, states an exception to the requirement of a license to perform acts of nursing is, "A student enrolled in an approved education program while practicing registered nursing or licensed practical nursing in that program." This clause identifies that students in education programs can perform any act of nursing appropriate to the licensing category for which the program is preparing them.

Health care facilities may impose restrictions on what a student can or cannot do. The law itself does not restrict student practice despite many urban legends. After all, it is difficult to train students to be nurses if they are not permitted to do what they will be expected to do once they graduate.

Is there any restriction on the number of students a nurse practitioner preceptor can have at one time?

The Criteria for Evaluation of Nurse Practitioner Programs is a report of the National Task Force on Quality Nurse Practitioner Education. Often called the "NTF Criteria", this document guides the accreditation of nurse practitioner programs. There is no specific limit to the number of students a preceptor may have at one time, however, it is critical to remember the legal requirements of billing. As a guide, the 2016 NTF criteria state that "The recommended on-site faculty/student ratio (direct supervision) is 1:2 if faculty are not seeing their own patients and 1:1 if faculty are seeing their own patients. In moving toward IPE and team based models of care, variation in faculty/student ratios for direct supervision may exist and should be structured to ensure safety and quality care while maintaining integrity of educational experiences".

Is there any restriction on the number of students a CRNA preceptor can have at one time?

Unlike the Nurse Practitioner Programs, CRNA programs utilize limitations on preceptor to student ratios. A clinical preceptor can only physically work with one student at a time. Although they may have different students on different days, this ratio must always remain one to one.

Can a student perform clinical requirements in a site where they are also employed?

Many employers will not allow their employees to complete clinical practice hours in their clinic, unit, or facility where they are also employed due to potential for role confusion and potential legal complications with insurance coverage. In many large institutions, students can be placed in other areas to avoid role confusion. Most APRN programs that approve such placements have written policies explaining the criteria under which a placement can occur. No employment compensation can be received by an APRN student or Advanced Practice Registered Nurse for their clinical practice experience.

If a student is injured during a clinical experience what should the preceptor do and who should be notified?

First, urge the student to get treated by the facility's ER if available and if urgent treatment is needed, additionally, seek care from the student's personal health care provider or through the campus student health. Beyond the initial first aid, the student should keep in mind that they will be responsible for payment for services rendered as they are not covered under the facility's workmen's compensation insurance.

If the student has a possible exposure to blood borne pathogens, time is of the essence to get treated, assessed, and possibly have the patient tested to see whether there is a need for prophylaxis. The CDC considers exposure to blood borne pathogens an emergency requiring prompt attention.

The student should have a copy of the school policies related to injury and school and faculty should be notified of the student's injury immediately.

What should I do if the student has difficulty getting in the required clinical hours for a rotation? What are the preceptor's responsibilities for providing an alternate preceptor for the student and what is the course faculty member's responsibility?

The school and the course faculty are responsible for assuring that the student completes the necessary clinical hours as well as for finding a new preceptor if needed. However, it would be very helpful to the school and to the faculty if the preceptor were to suggest an alternative.

How does HIPPA impact the information that preceptors give to students about their assigned patients?

HIPPA is an extension of pre-existing and long standing laws of confidentiality of patient information. HIPPA primarily focuses on electronic transmission and expands the categories of what is considered protected health information to many demographic categories that were previously not considered private or protected information.

Depending on the clinical setting, students may need information about the patient's condition to plan care for the next clinical day. Chart reviews and taking limited notes on the patient's diagnosis and treatment may be necessary. However, the students should avoid writing down the patient's name or any other non-medical identifying information.

Students should not print or take away pages from the patient's record which can be tempting due to the electronic records and printers available on the units.

If the student comes to the clinical experience and appears to be "under the influence" of a substance, what should the preceptor do?

Whether it's a student or a fellow staff member, this is always a difficult situation. Most importantly, the student should be kept from performing patient care if they are impaired. It is also important to notify the preceptor's supervisor, the student's faculty member, and document the behavior or the physical indicators that led the preceptor to believe the student is under the influence, especially if immediate testing for drug or alcohol use is not available. Do not send the student home if the student will be driving a car while impaired. A ride in a cab or with a friend would be preferable.

How should the preceptor handle a student accusation of discrimination against her/him based on her race, religion or national origin?

This can be a difficult situation because of liability and responsibility that cross two agencies, the school and the facility. The preceptor should immediately notify their supervisor as well as the faculty. The school's legal counsel as well as legal counsel for the clinical agency should be involved with any further communication between you and the student or the student's lawyer. As the preceptor is acting as an agent of the school, any legal action against the preceptor will also likely be an action against the school. If the allegations arose out of alleged actions the preceptor took while within the scope of employment, the clinical agency will also be involved in the defense. It is important not to communicate or interact further with the student until the preceptor has received legal counsel from the employer or the school.

What is the role of the preceptor in orienting the student to the agency?

This is a dual responsibility. Clinical placement contracts specify that schools, through their faculty, are responsible for initial orientation of APRN students. This includes assuring that all pre-clinical requirements are met, and that the APRN students have HIPPA, fire safety, infection control training, criminal background checks, a drug screening and are in compliance with any additional requirements by the facility.

The preceptor is responsible for on-the-ground orientation to the facilities policies and procedures, and for validating that the student has been oriented and is prepared to provide safe patient care.

What is the law protecting confidentiality of educational records of students, and how does this impact the preceptor?

The law that protects students or the confidentiality of the student's educational record is called FERPA, the Family Educational Rights and Privacy Act. FERPA is a federal law that protects the privacy of educational records of students from kindergarten through post graduate education. It is a similar law to HIPPA in that it protects confidentiality of sensitive and private information. Educational records such as student performance evaluations or course grades cannot be released without the student's consent, with the exception of extenuating circumstances. If the student is an adult or a minor without the parent's consent, it is the responsibility of the clinical instructor to secure student files that contain evaluations and course grades. The preceptor is responsible for ensuring course information, grades and evaluations are only disseminated to faculty and clinical instructors who have a need to know, and not disseminated to fellow colleagues and staff within the agencies.

It is also important for preceptors to use caution when writing about a student in an email, since the preceptor doesn't have control over where the email may ultimately be sent. The favorite saying among lawyers now is that the "e" in email stands for evidence.

If a preceptor needs to discuss sensitive information about or the performance evaluation of a student with the faculty, a brief email requesting a phone call would be the best avenue.

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