2.2 Ethical and Legal Responsibilities of the Nursing Assistant

Ethical Responsibilities of the Nursing Assistant

Nursing assistants should treat all clients equally and with compassion and respect for their inherent dignity, worth, and unique attributes. They should promote clients’ rights and safety to assist in achieving the best possible health and functioning. Read more about resident rights in the box later in this section.

As a student or a newly employed nursing assistant, you may find yourself in circumstances where you observe unethical behaviors exhibited by other agency staff. Examples of unethical behavior to avoid are as follows^[1]:

• Using a personal cell phone in patient care areas
• Not responding to call lights promptly when you are available to do so
• Ignoring the phone(s) assigned to you
• Using agency computers for personal use
• Avoiding clients because of their ethnicity, beliefs, demeanors, or other individual characteristics
• Avoiding work by sitting in empty patient rooms or the break room during on-time work hours
• Accepting gifts or gratuities from clients or their family members
• Sharing clients’ personal information with others who are not providing direct care
• Stealing items from clients or the health care agency

Governing Agencies

When you work as a nursing assistant, you are helping vulnerable populations. Vulnerable populations include patients who are children, older adults, minorities, socially disadvantaged, underinsured, or those with certain medical conditions. Members of vulnerable populations often have health conditions that are exacerbated by inadequate health care.^[2] As a result, there are many governing agencies involved in the care of these clients to ensure their needs are met.

Federal agencies that regulate and provide guidelines for health care include the following:

• Centers for Medicare and Medicaid (CMS): The CMS provides health care funding for qualifying members. Medicare is health care funding available to anyone over the age of 65, as well as those who have a permanent disability or kidney failure. There are four types of coverage that Medicare provides: care in hospitals and nursing homes (Part A); medical appointments, services, and equipment (Part B); additional services provided by private companies (Part C); and prescription drug coverage (Part D). Medicaid is health care funding available for individuals with low incomes and is provided at both the federal and state level. Both Medicare and Medicaid may cover services for resident care based on each individual’s needs.^[3],[4]
• Centers for Disease Control (CDC): The CDC provides guidance for facilities related to infection and disease control.^[5]
• Food and Drug Administration (FDA): The FDA protects public health by ensuring the safety of medications, biological products, medical devices, cosmetics, products that emit radiation, and the food supply. It also regulates tobacco products and helps the public get the accurate, science-based information they need to use medical products and foods to maintain and improve their health.^[6]
• Occupational Safety and Health Administration (OSHA): OSHA ensures safe and healthy working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.^[7]

Every state has a Department of Health Services (DHS) that works with local counties, health care providers, and community partners. The DHS provides services that aid and protect the state’s citizens, such as alcohol and drug abuse prevention programs, mental health programs, public health services, disability determination, implementation of long-term care, and regulation of state nursing homes, along with numerous other services.

Federal Health Care Acts

In addition to government agencies, there are federal laws that directly affect health care. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. The HIPAA security rule requires the following:

• Ensure the confidentiality, integrity, and availability of all protected health information (PHI)
• Detect and safeguard against anticipated threats to the security of the information
• Protect against anticipated impermissible uses or disclosures
• Certify compliance by their workforce

As a nursing assistant, this means that you must legally keep any information regarding the care of your clients confidential, including documentation, care plans, and shift reports. Refer to the “Guidelines for Reporting” subsection in Chapter 1 for more details about confidential reports.

The Omnibus Reconciliation Act of 1987 (OBRA) set forth new provisions for Medicare and Medicaid related to new standards for care in the nursing home setting. One major provision was a requirement for nurse aide training. It required that new nurse aides train for a minimum of 75 hours and pass a competency evaluation and that each state records a registry for nurse aides who have passed the competency evaluation. It also focused on improving quality of life for residents in long-term care (LTC), focusing on patient-centered care and meeting the preferences of each individual in making decisions regarding their care.^[8] Read more about long-term care settings in the “Health Care Settings” section of this chapter. During patient-centered care, an individual’s specific health needs and desired health outcomes are the driving forces behind all health care decisions. Patients are partners with the health care team members, and health care professionals treat patients not only from a clinical perspective, but also from an emotional, mental, spiritual, social, and financial perspective.^[9]

The Older Americans Act (OAA) was passed in 1965 in response to concern by policymakers about a lack of community social services for older persons. The original legislation established authority for grants to states for community planning and social services, research and development projects, and personnel training in the field of aging. It also includes states’ Long-Term Care (LTC) Ombudsman programs that work to resolve problems related to the health, safety, welfare, and rights of individuals who live in LTC facilities, such as nursing homes, assisted living facilities, and other residential care communities. The OAA act requires the following of ombudsman programs^[10]:

• Identify, investigate, and resolve complaints made by or on behalf of residents
• Provide information to residents about long-term services and supports
• Ensure that residents have regular and timely access to ombudsman services
• Represent the interests of residents to governmental agencies and seek administrative, legal, and other remedies to protect residents
• Analyze, comment on, and recommend changes in laws and regulations pertaining to the health, safety, welfare, and rights of residents

Resident Rights

As a health care regulator, the CMS ensures residents know and understand their rights and these rights are upheld. Resident rights are the most important aspect of providing care. It is essential for health care workers to protect the dignity of residents and enhance their quality of life. A concise list of resident rights that are protected in long-term care and other settings is described in the following box.

These guidelines should be at the forefront of your mind with any resident interaction. It is important for NAs to remember that it can be difficult for residents to accept being dependent on a caregiver for completing their ADLs. This feeling of dependency can cause them to lose self-esteem or even lead to depression. Refer back to the exercise in the “Managing Clients’ and Family Members’ Stress” subsection in Chapter 1 to recall how to empathize with residents. If a resident has a request, you should make accommodations to meet their needs as appropriate. If you are unsure how to meet their request, consult with your supervising nurse. The only reason a resident preference should not be granted would be due to safety or infection control concern. For example, if a resident wants to have a candle in their room, the risk of fire would not allow this request, but an alternative would be an electric candle. If a resident wanted to use a hair dryer but their roommate could possibly burn themselves due to altered safety awareness, the facility should work to find a secure place where the resident could use the hair dryer.

Elder Abuse and Neglect

As discussed in the “Resident Rights” section, clients are to be free from abuse and neglect. Elder abuse is an intentional act, or failure to act, that causes or creates a risk of harm to someone age 60 or older. The abuse occurs at the hands of a caregiver or a person the older adult trusts. Neglect refers to a failure to provide care for oneself or to someone for whom you are enlisted to care. Review Table 2.2 for types of abuse and neglect and signs or symptoms that you should report to the nurse.

Table 2.2 Types of Abuse and Signs or Symptoms to Report^[12],[13]

Nursing assistants and other health care professionals are referred to as mandated reporters because they are required by state law to report suspected neglect or abuse of the elderly, vulnerable adults, and children. As a caregiver, you are required to report any signs or symptoms that are suspicious for abuse or neglect to the nurse. At the time of the finding, you must stay with the resident until you can ensure that no further abuse or neglect occurs, even if you are in a facility. If a resident reports any abuse, you are obligated to inform the nurse, charge nurse, or an administrator, regardless of the cognitive function of the person reporting so that an investigation can be performed.

The Survey Process

Each state’s Department of Health Services (DHS) conducts surveys of long-term care (LTC) facilities under the guidelines provided by the CMS. Standard surveys typically occur at least one time per year. During a survey, DHS employees observe care provided to residents, watch preparation and serving of food, review resident care plans and facility documentation, interview residents and families, and look at every aspect of the facility. The surveyors are ensuring that all aspects of residents’ physical, emotional, social, and spiritual needs are met. If you are a nurse aide being observed or interviewed, it is important to only provide facts. If you do not know the answer to a question, respond that you do not know the answer and explain that you will find an answer as soon as possible. You can offer things like, “I need to check my care plan for that information,” or “I would ask the nurse for clarification,” as appropriate to the question.^[14] 

If a problem or discrepancy is discovered during a survey, the facility receives a citation from the surveyors. At the end of the survey process, DHS will conduct an exit interview with the Administrator, Director of Nursing (DON), and other facility leadership. When residents are found to be at a high risk for adverse events, the surveyors will ask the facility to create a plan to correct the issues. DHS will make a return visit in a few weeks to follow up on the implementation.

DHS may also conduct a survey if they have received several complaints from residents or family members or if certain events occur such as elopement of a resident or an accident with a major injury. Elopement is defined as an event when a resident who is incapable of protecting themselves from harm is able to successfully leave the facility unsupervised and unnoticed and possibly enter into harm’s way.^[15] 

The results of a survey must be made available to the public. They must be posted at the entrance to the facility, along with information on how to contact the ombudsmen. They are also available electronically at medicare.gov.