Legal Issues in Clinical Education

Copyright 2008 by The Health Alliance of MidAmerica LLC

3-2

Objectives

Present essential basic legal concepts Reduce risk

• Faculty role

• Student policies and practices—exceptions

• FERPA

• HIPAA

• Allocation and management of risks

3-3

Faculty Status: Role and Risk; Risk and Role

Teaching offers personal and professional satisfaction.

To teach is to learn twice.

– Joseph Joubert (1754-1824)

3-4

Because of its value in our society, the law offers some protections to those who engage in teaching.

Doctrine of Academic Abstention

Sovereign Immunity

3-5

Understanding Risks: A parade of horribles… Balancing Professional Expectations, Patient

Welfare, and Instructional Needs

3-6

Understanding Risks

Duties are owed to patients, employers, students, the institution, and the profession—but they are congruent.

3-7

Understanding Risks

DUTY + BREACH { Present Causation and

Damages } = Liability

3-8

Understanding Risks

Duty and Standard of care

3-9

Understanding Risks

Public institutions have Constitutional Duties and Private institutions often contract to protect these values.

3-10

Understanding Risks

The secret of education is respecting the pupil.

– Ralph Waldo Emerson

3-11

Frequently Asked Questions

Am I liable for what a student I am instructing or acting as preceptor does or fails to do?

Should I have insurance to serve in this clinical educator role?

When I initial notes in a chart entered by a student am I attesting to their veracity?

3-12

Understanding Risks

Due Process

• Is there a property interest or a contractual obligation?

3-13

Understanding Risks

Due Process

• Is this academic or a conduct based dismissal?

3-14

Understanding Risks

Due Process

• If there is a property interest or a contractual obligation what process is due?

3-15

Understanding Risks

Procedural Due Process Basics

• Notice

• Opportunity to tell your side of the story and to have the decision reviewed

• At a meaningful time and in a meaningful manner

3-16

Understanding Risks

Substantive Due Process

• Whether the decision was fundamentally fair

3-17

Understanding Risks

All persons are entitled to Equal Protection

3-18

Understanding Risks

All persons are protected from discrimination on the basis of race, sex, age, disability, color, national origin, religion, veteran’s status, and sometimes marital or family status or sexual orientation.

3-19

Understanding Risks

Harassment is a form of discrimination.

3-20

Student Issues: Policies

Take time to become familiar with the policies affecting the students and your responsibilities (know where to find them when needed).

3-21

Student Issues: Policies

Family Educational Rights and Privacy Act

• 1974

• FERPA

• Buckley Amendment

3-22

Student Issues: Policies

FERPA

• Regulates disclosure of student records

• Offers students the ability to review and challenge records

3-23

Student Issues: Policies

FERPA

• Covers records which contain information that identifies student

• Disclosure must follow guidelines

3-24

Student Issues: Policies

FERPA

• Schools designate Directory information that can be shared.

• Students can request that their Directory information not be shared.

• Release should be by school officials.

3-25

Student Issues: Policies

Grading

• Due process and developmental instruction favor frequent evaluation and feedback. A failing grade should not be a surprise to the student.

Learning is not compulsory… neither is survival. – W. Edwards Deming

3-26

Student Issues: Policies

Syllabi

• Evidence of our contract with our students.

3-27

Student Issues: Policies

Academic Assessment Issues

• measurement of performance

• ability to perform

3-28

Student Issues: Policies

Misconduct

• academic integrity (cheating)

• ethics

3-29

Student Issues: Practices

Assumptions are the termites of relationships.Henry

Winkler, actor (1945- )

Be familiar with customs, expectations and actual practices regarding confidentiality, fair (or due process) procedures, and professional and academic integrity.

3-30

Student Issues: Exceptional Circumstances Ignorance more frequently begets confidence

than does knowledge. – Charles Darwin, naturalist and author (1809-1882)

3-31

Student Issues: American with Disabilities Act

• Accommodations are intended to provide equal opportunity to otherwise qualified students who meet the technical standards.

3-32

Student Issues: Americans with Disabilities Act

• Faculty are not to make accommodation decisions without consultation.

• Accommodations cannot fundamentally alter the nature of the program, lower standards or cause an undue burden.

3-33

Health Insurance Portability and Accountability Act (HIPAA) Protects medical record information from

release without consent and one's ability to challenge one’s records for accuracy.

There are financial and criminal penalties for violations.

3-34

Allocation And Reduction Of Risks

Affiliation Agreements: Define Duty and Allocate Risk

Specify which party is responsible for activities and who makes decisions.

3-35

Allocation And Reduction Of Risks

Affiliation Agreements: Define Duty and Allocate Risk

• Role Distinction (by duty and expertise)

• Indemnification language

• Realistic commitments, i.e. training and criminal clearance v. promise to perform

• Responsibility for Student Conduct

3-36

Insurance

Different types of insurance include professional liability, general liability and medical/health.

3-37

Risk Management Through:

Using good communication Maintaining appropriate documentation Protecting sovereign immunity Protecting academic abstention by

exercising professional judgment

3-38

Risk Management Through:

Understanding the tort formula

• Don’t breach duty

• Follow standard of care Understanding the appropriate orchestration

of roles Maintaining insurance is appropriate

3-39

Summary Slide

Conclusion and Your Questions

3-40

Conclusion and Your Questions

Teaching people skills without giving them a vision for a better future a vision based on common values—is only training.

– Nido Qubein