Running Head: Financial and Legal Aspects in Nursing Administration: Unit 1 Legal Issues, Topics 7-12 1

Financial and Legal Aspects in Nursing Administration: Unit 1 Legal Issues, Topics 7-12

3

Northern Negros State College of Science and Technology

Old Sagay, Sagay City, Negros Occidental

MASTER IN NURSING

(as per BOT Res. No. 42, s. of 2005)

Financial and Legal Aspects in Nursing Administration

Unit 1: Legal IssuesTopics 7-12

Prepared By:

Estales, Kimberly B.

Estilo, Clifford L.

Feliciano, Lorelyn Joy O.Gayares, Cyrene

Gayares, Kris Earl Nhovie

Gochoco, Jewel A.Mocon, Florence Mae

Mueda, John Fritz Mark D.Rubin, Aiza Pearl

Villanueva, Elaine P.Submitted to:ATTY. JOSEPH GEDEONI C. VALENCIA, MN, RNA. Legal Responsibilities of the Nurse Administrator

Nurse administrators, often called a head nurse at the basic level, are in charge of a nursing staff and help to make sure that the operation runs as it should. These nurses commonly have advanced degrees, although some entry-level positions require only bachelor's level nurses. The nurse administrator must be well versed in business practices and have a thorough knowledge of policy, finances, management and organizational skills to provide leadership for the staff. In short, the nurse administrator is responsible for all the day-today activities within the operation.Responsibilities of a Nurse AdministratorA nurse administrator will work in a variety of health care environments. They often manage a team of nurses, or a specific nursing unit or shift. They are fully trained in the implementation of nursing procedure and must hold their team of nurses accountable for their actions. Nurse administrators can interact directly with patients but often are assigned to a more managerial role.

Nurse Administrator responsibilities may include:

Overall responsibility for nursing patient care

Establishing and documenting administrative procedure for the nursing team

Promoting the development of nursing staff

Budgeting and maintaining practice and standard guidelines

Communication between practice and nursing staff

Scheduling and supervising of nursing staff

Analyzing nursing treatment and diagnosis decisions

Troubleshooting and patient consultation

Team building exercises and employee counseling.

ANurse Administratoris highly trained and has knowledge of nursing procedure and protocol. They work as pivotal leaders in an organization and may aspire to chief executive positions. People drawn to this specialty want to be leaders in health care. They enjoy managing processes and people. Nurse Administrators are qualified to work in a variety of positions in the health care environment.B. Legal Considerations of Managing a Diverse WorkforceI. Introduction

The Philippines is a country of diverse culture, ethnicity, language and racial origin. There are eight major languages and more than 100 sublanguages and dialects. The fact that the country has about 7,100 islands reinforces this diversity.

It is important to bear in mind that within the larger national situation and context, there are bigger issues of diversity that should be recognized and addressed. The causes and consequences of these bigger issues of diversity are complex. It is enough for now that these are noted and placed in this larger perspective. The most important issue of diversity is the worsening gap between the rich and the poor. From the National Statistics Office, in 2002, there are 5.2 million poor families. Only about thirty (30) families (out of approximately 15 million families) own ninety (90%) percent of the national wealth. Roughly, about 13 out of every 100 Filipino families are considered as core poor in 2000. This means that the per capita annual incomes of these families are not sufficient to buy their basic necessities.

Another important phenomenon in the Philippine society is the fact that about seven (7) million Filipinos are working in 100 countries all over the world. They have helped significantly in providing stability and keeping the economy afloat. Their annual remittance of about US$8 billion is bigger than the total exports of the country of about US$ 6 billion. Many of them have achieved their highest career advancement and potentials abroad. However, many, especially women, have been trapped in employment situations that are difficult, abusive and unprotected. The Philippines has been very proactive in bringing out the issues and concerns of Filipino migrant workers in various regional and international fora.

II. General Policy and Legal Framework

The legal and policy environment on diversity may be described as positive and reflective of international conventions and are quite comprehensive for some sectors especially on women. There are several landmark legislations and policies to ensure that women, persons with disabilities and indigenous people are empowered and given equal access to economic, social and political opportunities.

The highest law of the land, the Philippine Constitution, states in the Bill of Rights that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. Full protection to labor, local and overseas, organized and unorganized, and the promotion of full employment and quality of employment opportunities for all are also guaranteed.

For women, the state upholds the fundamental equality between women and men before the law and recognizes the role of women in nation building.

For disabled persons, the state has guaranteed the establishment of a special agency for disabled persons for their rehabilitation, self-development and self-reliance and their integration into the mainstream of society.

For indigenous peoples, the Constitution recognizes, respects and protects their rights and ensures the preservation and development of their cultures, traditions, and institutions.

The Medium-Term Philippine Development Plan (MTPDP) for 2001-2004 of the Macapagal-Arroyo Administration likewise contains pertinent provisions that seek to protect the rights of diverse groups. The MTPDP embodies the antipoverty and overall development framework of the administration to prepare all Filipinos for the new economy and to expand and equalize access to economic and social opportunities, particularly of women, persons with disabilities, the elderly and indigenous groups.

III. Laws and Policies on Diversity to Address Specific Sectors

A. Women

The Philippines is internationally recognized for the status accorded to Filipino women. Within the Asian region the Philippines is a forerunner in pushing for gender equality and women empowerment particularly in the workplace. Much has been achieved for this sector. Lynchpin legislation is the Women in Development and Nation Building Act (RA 7192) which was passed during the watch of President Corazon C. Aquino. Among the important features of this law are the following:

(a) the allocation of a substantial portion of official development assistance to women in development programs/projects/activities;

(b) the review/revision of all government regulations, circulars, issuances

and procedures to remove gender bias;

(c) the active participation of women and womens organizations in development programs; and,

(d) the equal right of women and men to enter into contracts, become member in clubs, gain admission to military schools and, as a spouse who does household work full-time, get social security insurance and housing.

As early as 1975, an organization, the National Commission on the Role of Filipino Women (NCRFW), was created to review, evaluate and recommend measures, including priorities to ensure the full integration of women for economic, social and cultural development at all levels and to ensure further equality between women and men.

All government agencies have been enjoined to establish their own Gender and Development (GAD) focal persons. The NCRFW also oversees the implementation of the Institutional Strengthening Project Phase II which aims to strengthen the capabilities of oversight agencies in mainstreaming gender concerns in planning, policy formulation, program development and implementation, and monitoring and evaluation. There were also a number of programs that addressed violence against women (VAW) and womens lack of economic empowerment, namely: the National Family Violence Prevention Program and the Productivity Skills and Capability Building Program.

The MTPDP further ensures that programs and projects financed by the national budget and official development assistance (ODA) appropriately integrate women and gender concerns. The following policies, programs and initiatives are significant milestones:

(a) A full flexi-time schedule which allows the employees to start and end work at a time convenient to him/her provided that the same shall not be prejudicial to the prompt and efficient delivery of service and shall not disrupt the daily operations of the office.

(b) The maternity leave policy has been made more flexible.

(c) The PCSC established in 1989 a model Day Care Center for the employees children where the play-study method is used. In addition, Breastfeeding Center has been put up.

(d) There were affirmative policies which specifically state that no pregnant women shall be discriminated against on matters of promotion and career development.

(e) There were provisions for reproductive health concerns which include annual Pap smear and mammography tests for women ages 35 and above.

(f) A Committee on Decorum and Investigation (CODI) was created in all government agencies to ensure proper investigation in the handling of sexual harassment cases with representation from the GAD Focal Persons.

(g) Policies and initiatives to promote and ensure a sexual harassment free environment were also formulated.

B. Persons with Disabilities (PWDs)

Republic Act 7277 otherwise known as the Magna Carta for Disabled Persons was passed in 1992. This law strongly prohibits employment discrimination against a qualified disabled person in regard to application, hiring, promotion, compensation and other employment conditions. The government guarantees that five (5%) percent of all casual, emergency and contractual positions in the three (3) departments, i.e., social welfare and development, health, and education, and other government agencies engaged in social development shall be reserved for disabled persons.

With this law, a National Council for the Welfare of Disabled Persons (NCWDP) was established to formulate policies on disability, to coordinate the functions of public and private entities and international organizations operating in the Philippines and to enforce laws on disability prevention, rehabilitation and equalization of opportunities for persons with disabilities.

The law likewise prohibits the following acts of discrimination:

(a) Limiting, segregating or classifying a disabled job applicant;

(b) Using qualification standards or selection criteria that tend to screen out a disabled person unless such standards are shown to be job-related for the position in question;

(c) Utilizing standards, criteria, or methods of administration that:

(1) have the effect of discrimination on the basis of disability, or

(2) perpetuate the discrimination of others who are subject to common administrative control;

(d) Providing less compensation or other forms of remuneration and benefits to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;

(e) Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants;

(f) Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant; and,

(g) Excluding disabled persons from membership in labor unions or similar organizations.C. Indigenous People and Ethnic Communities

A landmark legislation for indigenous peoples was passed in 1997. Republic Act 8371, otherwise known as the Indigenous Peoples Rights Act of 1997, is an act to recognize, protect and promote the rights of indigenous cultural communities/indigenous peoples. To oversee the strict implementation of the law, the National Commission on Indigenous Peoples (NCIP) was created to primarily protect and promote the interest and well being of the indigenous peoples with due regard to their beliefs, customs, traditions and institutions.

As such, it shall serve as the primary government agency responsible for the formulation and implementation of pertinent and appropriate policies, plans and programs to carry out the policies set forth in the new law. Responsive to the intent of the law, the PCSC has issued a circular to encourage appointment of natives or indigenous people in a certain region, the Cordillera Administrative Region (CAR), whose population is composed mostly of ethnic groups and communities.D. Employees in Local Government Unit (LGUs)

One major breakthrough affecting local government units was the passage of the Local Government Code (LGC). This law (RA 2171) sets the foundation for truly sustainable development and self-reliant local government units. It has also afforded autonomy to local government relative to its personnel functions. Like any other head of office, a local chief executive was accorded powers and/or rights on personnel administration. Among others, they include the right to appoint, promote and to exercise such other personnel actions as reassignment and detail which are generally considered as management prerogatives. These powers also included the right to discipline and to impose the corresponding penalties. In the exercise of these powers, however, certain laws, rules and regulations have to be observed.

Freed from an overly centralized government, the LGC spurred major changes by devolving more powers and resources to Local Government Units (LGUs) and allowing peoples participation in local governance. The Code allowed each LGU to grow in the direction it has determined for itself and in accordance with its own capabilities.

A major plus-factor in work diversity is the imposition of the residency requirement among appointive local officials in the provincial, city and municipal levels, e.g., secretary, treasurer, assessor, accountant, health officer, among others. Local appointive officials are required to be a resident of the locality for at least six (6) months immediately preceding their appointment.

E. Public Sector Unions

Executive Order No. 180 restored the right of workers in the public sector to self-organization. This right has been denied public sector employees starting 1972 when martial law was declared over the country. The directive provides that government employees shall not be discriminated against in respect to their employment by reason of their membership in employees organizations or participation in the normal activities of their organization. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees organizations.

The PCSC, as an advocate of employee empowerment in the public sector has encouraged public sector unions to draw up a Checklist of Reasonable Working Conditions to establish a working environment which will promote harmonious relationship between the management and the unions and to contribute to the attainment of a responsible public service.

To oversee the management of personnel relations programs particularly settlement of disputes between management and unions, the Public Sector Labor Management Council (PSLMC) was created. The PSLMC issued a recent policy which provides the prerogative to the union in the use of the 50% of the total savings of an agency.F. Elderly

Guided by the Philippine Constitution, laws that recognize the positive role of older persons in our society have been enacted, encouraging older persons to contribute to nation-building and to mobilize their families and the communities they live with, to reaffirm the Filipino tradition of caring for older persons. These laws further granted benefits and special privileges to older persons as well as created the office for senior citizens' affairs nationwide. A republic act in 1995 established senior citizens centers to serve as venues for the delivery of integrated and comprehensive services to older persons. The organizations of older persons manage these centers with the support of

the local and national governments.

Based on the Vienna Plan of Action on Ageing and the Macao Plan of Action on Ageing for Asia and the Pacific, the Philippines adopted the Philippine Plan of Action for Older Persons in 1999. The plan of action addresses eight major areas of concern: namely, older persons and the family; social position of older persons; health and nutrition; housing, transportation and environment; income security, maintenance and employment; social services and the community; continuing education/learning; and, older persons and the market.IV. Strengths of the Philippines on the Issue of Diversity

As can be gleaned in the numerous policies for women, persons with disabilities, indigenous peoples, PSU members, LGU employees and the elderly there exists a strong legal and policy framework for these groups. Their rights and privileges have a strong foundation in the Constitution and in the MTPDP.

Moreover, as a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Philippines is committed to implement this as well as other international agreements to improve the situation of Filipino women.

The PCSC, through its quasi-judicial functions, has the power to act on complaints involving discrimination and harassment. From 1995, the PCSC has received thirty-eight (38) cases on sexual harassment which has led to fifteen (15) dismissals, seven (7) suspensions and two (2) acquittals.

The strong institutional and support system put in place is further strengthened by the active involvement of non-government organizations (NGOs) and civil society organizations (CSOs) in the country. There exists a workable partnership between government agencies and NGOs/CSOs in so far as the implementation and monitoring of programs and policies are concerned. The NGOs and CSOs also serve as vigilant watchdogs to ensure that such programs and policies are properly implemented.V. Continuing Challenges and Recommendations

1) There is need to intensify actions to help women break the glass-ceiling and thus increase their level of participation in the top level decision-making positions.

2) There is need to improve the career mobility of local government employees into national career positions.

3) The PCSC needs to undertake policy study on addressing the dilemma on ensuring a balance between the merit and fitness principle in recruitment and the principle of equality.

4) There is need to improve the recency and regularity of generating information regarding the five (5) sectors to allow comparison over time and to determine if improvements have been achieved.

5) There is need to improve and strengthen the information, education, communication and advocacy on the policies and issues affecting the five (5) sectors.

6) While there are enough laws in the Philippines addressing diversity, most of which can even be considered advanced, much still needs to be done in terms of ensuring the effective implementation and enforcement of such laws.C. Professional versus Institutional Licensure

Licensureis anon-voluntaryprocess by which an agency ofgovernmentregulates a profession. It grants permission to anindividualto engage in an occupation if it finds that the applicant has attained the degree of competency required to ensure the public health, safety, and welfare will be reasonably protected. Licensing it always based on the action of a legislative body. Once a licensing law has been passed it becomes illegal for anyone to engage in that occupation unless he or she has a license. The health care professions are typically licensed at the state and/or local level, but not usually at the federal level.

Professional licensure

The granting of a legal permit that is personal and cannot be transferred to another. The individual seeking the licensure must meet standards for practice as established by the state licensing statutes. In most instances the initial license is granted upon successful completion of an examination administered by the state examining board of the specific profession or vocation, and annual re-registration is required to maintain the license.

Institutional licensure

Licensure of an agency providing a particular service to the public. In the health field the licensure of health care agencies, such as hospitals and clinics, has been common practice for many years.

D. Integrating Leadership Roles and Management Functions in Legal and Legislative Issues

Legislative and legal controls for nursing practice have been established to clarify the boundaries of nursing practice and to protect clients. The leader uses established legal guidelines to role model nursing practice that meets or exceeds accepted standards of care. Leaders also are role models in their effort to expand expertise in their field and to achieve specialty certification. Perhaps the most important leadership roles in law and legislation are those of vision, risk-taking, and energy. The leader is active in professional organizations and groups that define what nursing is and it should be in the future. This is an internalized responsibility that must be adopted by many more nurses if the profession is to be recognized and vital force in political arena.

Management functions in legal and legislative issues are more directives. Managers are responsible for seeing that their practice and the practice of their subordinates are in accord with current legal guidelines. This requires that managers have a working knowledge of current laws and legal doctrines that affect nursing practice. Because laws are not static, this is an active and ongoing function. The manager has a legal obligation to uphold the laws, rules, and regulations affecting the organization, the patient, and nursing practice.

Managers have a responsibility to be fair and non-discriminatory in dealing with all members of the workforce, including those whose culture differs from their own. The effective leader goes beyond merely preventing discriminatory charges and instead strives to develop sensitivity to the needs of culturally diverse staff.

The integrated leader-manager reduces the personal risk of legal liability by creating an environment that prioritizes patient needs and welfare. In addition, caring, respect, and honesty as part o nurse-patient relationship are emphasized. If these functions and roles are truly integrated, the risks of patient harm and nursing liability are greatly reduced. E. The Procurement Law in the Philippines

Procurement refers to the acquisition of goods, consulting services and the contracting for infrastructure projects by procuring entity. (Sec. 5(aa), IRR, R.A. 9184)

RA 9184 was designed to cover everything government needs to buy, construct or provide. It set down that procurement along with the rules and regulations around it covered the following:

1. Acquisition of goods

2. Consulting services

3. Infrastructure projects

Signed by President Arroyo on January 2003, the GPRA applies to the procurement of infrastructure projects, goods and consulting services regardless of source of funds, whether local or foreign by all branches and instrumentalities of government. The laws coverage is from procurement planning up to the stage of contract implementation, termination of contract and warranty.

Among the salient features of the law are:

Use of information technology to promote transparency and competition

Shift from prequalification to simple eligibility screening and postqualification procedure to eliminate unnecessary delay.

Removal of bracketing in evaluating bid prices, and the use of the approved budget for the project as the ceiling on bid prices.

Standardization of the procurement process and forms.

Institutionalized participation of civil society organizations in all stages of the procurement process to improve transparency.

Adoption of open and competitive bidding in all levels of public procurement

Professionalization of procurement officials

Inclusion of penal clause and civil liability.

The Procurement Law adopted the following general principles in the ideal pursuit of good governance:

1. Transparency

2. Competitiveness

3. Streamlined procurement process

4. System of accountability

5. Public monitoring of the procurement process F. Updates on Different Legal Issues in Nursing Administration

In 1994, the U.S. Supreme Court defined a nursing supervisor as a nurse who assigns, oversees, and provides direction to licensed or unlicensed personnel. This definition not only exposes nurses in form supervisory to supervisory liability but expands the legal responsibility to staff nurses, particularly those who assume the responsibility of charge nurse. The supervisor may be found negligent if failing to assign or supervise appropriately. Furthermore, the corporation, under the doctrine of respondeat superior, is liable for the actions both the nurse performing the assigned care and the nurse making the assignment.Inadequate staffing

Nursing facilities are responsible under federal law to provide adequate staffing. Adequate staffing incleds a sufficient number of competent staff to reasonably ensure safe care. An important nurse executive competency identified by the American Organization of Nurse Executives is the appropriate allocation of nursing resources based on patient acuity. This can be a major challenge for nurse administrators and other healthcare leaders today, as organizations compete for dwindling of healthcare providers.Floating

Floating is common in times of high acuity or short staffing. Floating has implications for both the nurse who is floating, the personnel reassigning the nurse, and the nurse delegating patient care to the floating nurse. The nurse who is being assigned to float has a professional duty to the organization and the patient to accept to accept the assignment unless the nurse is lacking education and skill to perform the assigned duties. The nurse is obliged to provide for patients safety. In extreme staffing circumstances, abandoning patients may potentially jeopardize patient care and safety. In these instances, a nurse lacking a certain skills and experience is preferable to the patient lacking a nurse. Thus fear or uncertainty is not a legitimate reason to refuse an assignment and used alone as a basis for refusing to float is considered unprofessional and may subject the nurse to the legal consequences of abandonment.

On the other hand, nurse managers and supervisors have a responsibility to appropriately staff the nursing units and when resources are limited must critically appraise the circumstances and carefully distributed personnel, striving to match the needs of the patients with the skills of the nurse. As indicated earlier, the supervisor, whether formally designated as such, or a staff nurse, who fails to assign and supervise appropriately, may be found negligent.

Following the chain of command

A nurse who fails to question an order of a patient when he or she believes that it is not in the best interest of the patient may be liable. Furthermore, nurses are responsible to contact a supervisor when a physician fails to take appropriate action or is unwilling to cooperate in a situation that threatens the well-being of a patient. Organizations should have policy and procedure that clearly defines the chain of command. However, policy alone is sufficient. Nurses need to be educated on their responsibility to notify and individual in authority to assist with unresolved or threatening situations. Commonly, by referring unusual or difficult situations to a higher level, action can be taken that can protect a patients well-being. Therefore it is important to recognize that the nurses duty to a patient extends beyond direct care and carries the responsibility of advocacy.

Nurses and the Litigation process

Nurses in an executive or manager role may be required to testify as a result of direct involvement in an alleged malpractice event, under the respondeat superior doctrine, or as the corporate representative. The designation of a corporate representative occurs following notice or subpoena of the organization to designate a person to testify on behalf of company policy. Staff nurses employed by the facility may be either personally named in a lawsuit or, more commonly, subjected to the litigation process as an agent of the facility. At any level, participation in the unfamiliar legal arena can be threatening and stressful. During the litigation process, communication between the attorney and client is considered privileged or protected by law and is inadmissible in court. However, if the client shares the discussion with others, the communication is no longer protected and may be entered as evidence in court. Unfortunately, the code of silence can magnify the anxiety of those involved in a lawsuit and can intensify feelings of shame, guilt, or isolation experienced by the defendants. Education and emotional support of nurses going through the long and frightening litigation process is paramount.

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