RNs, Risk, and UAP

In the delivery of nursing care to patients, there have always been assistants to the nurse. It is probably impossible to deliver nursing care without the proverbial "extra pair of hands." These assistants or unlicensed assistive personnel (UAP) are "individuals who are trained to function in an assistive role to the registered professional nurse in the provision of patient/client care activities as delegated by and under the supervision of the registered professional nurse" (ANA, 1996). They work in a variety of settings including hospitals, clinics, nursing homes, home care agencies, hospices, and private practices and can be identified as nursing assistants, nurses' aides, patient care technicians, nurse extenders, nursing associates, certified nursing assistants, or home health aides; (The latter two titles are in federal statute.)

There is nothing intrinsically wrong with nurses needing assistance in delivering care. The difficulty for registered professional nurses and licensed practical nurses arises when certain tasks are included in the job descriptions of unlicensed assistive personnel that many nurses believe constitute the legally-protected scope of the practice of nursing. Nurses fear that there may be adverse consequences for their patients and themselves if they permit a UAP to do the identified task or teach a UAP to perform particular aspects of patient care. Nurses also fear the consequences of failing to supervise the UAP in delivering care and in ensuring that there is a positive outcome for the patient. Nurses also express concern about possible professional disciplinary and malpractice charges arising from working with UAP.

There are many changes occurring in health care: managed care is increasingly more powerful; mergers and networks are changing the face of the industry; federal, state and local governments and private payors are increasingly reluctant to provide the money to support healthcare; and technology is rapidly changing diagnostic procedures and therapies. The settings in which healthcare is delivered are being modified as hospitals become intensive care centers for sicker and more acute patients, and ambulatory, home care, and long term care settings are caring for patients that a few years ago would have been in a traditional tertiary care center. The patient has not disappeared, just moved to another locale. There is still a patient needing care, and because of the multiple factors of time, acuity, and complex need, the patient may more than ever before require professional nursing care.

In response to these various economic, governmental, and business pressures, the healthcare industry has sought to restructure its facilities, downsize its work force, and reengineer the workforce by increasing the utilization of unlicensed assistive personnel and refocusing the role of nurses to supervise the tasks and care provided by these workers. This increased use of UAP to perform nursing duties is occurring in many instances without evidence of the need for changing the care delivery model or research to evaluate the possible outcomes of such changes. In its recent study on staffing in acute care facilities, the Institute of Medicine (IOM) was particularly concerned about the possibility that healthcare facilities were creating an industry-wide experiment (IOM, 1996). Where studies can be identified, they tend to be anecdotal in nature and frequently limited to a single institution or are drawn from a very small sample. The main factors examined are nurse satisfaction with the UAP role, the outcomes and quality of care, productivity and costs, and patient satisfaction. While VAP were originally added to nursing staffs to complement the nursing care delivered by licensed nurses and to perform non-nursing functions, in the most recent studies it is clear that the UAP are being used to substitute for the nurse (Krapohl & Larson, 1996) and it is this shift that so concerns the IOM and many nurses.

Nurses are very familiar with working with others in delivering care. Whether involved in a collaborative practice model or in more traditional care teams, nurses have a long history of delivering care to a variety of patient populations in conjunction with others. When using UAP in today's environment, the focus should be on clarifying that UAP can only be used in roles that support the RN's or LPN's practice and that in no circumstances can a UAP substitute for a licensed nurse or provide total patient care. "Nursing is a knowledge-based process discipline and cannot be reduced solely to a list of tasks; the licensed nurses' specialized education, professional judgment and discretion are essential for quality nursing care" (National Council of State Boards of Nursing 1995, p. 2). The American Nurses Association recognizes that "unlicensed assistive personnel provide support services to the RN which are required for the registered nurse to provide nursing care in the healthcare settings of today. Any nursing intervention that requires independent, specialized, nursing knowledge, skill or judgment cannot be delegated" (ANA, 1992).

It is imperative that one understand the authorization for the practice of nursing and the legal and professional responsibility for that practice. In all of the states in this country, the practice of nursing, as well as many other healthcare professions, is addressed in state statute and in a variety of rules, regulations and legal interpretations. There is no single model for a nurse practice act and this sometimes adds to the confusion across the country as to what nursing care must be done by licensed nurses and what tasks can be performed by unlicensed workers. Generally, states have specific definitions regarding the practice of a registered professional nurse (RN), a licensed practical/vocational nurse (LPN/LVN) and, in some states, advanced practice nurses (e.g. nurse practitioners, clinical nurse specialists, nurse midwives, nurse anesthetists). RNs in all states are independent practitioners of nursing and are not required to be supervised in the care that they render, while licensed practical nurses are dependent practitioners and by law are required to be supervised in most cases by RNs, physicians, or other categories of independent healthcare practitioners. It is a professional responsibility to be knowledgeable of one's nurse practice act; ignorance of the law is no defense in any disciplinary action (Green, Caddy, Waddell & Fitzpatrick, 1995).

It is clear that the states license nurses and other healthcare practitioners for two main reasons: to protect the public from harm and to permit the practitioner to practice within a legally-defined and protected scope of practice. The states have various administrative bodies such as boards of nursing to oversee the practice of its licensed practitioners. These state agencies regulate the practice of nursing and interpret the various statutes, rules, and regulations of the state regarding legally-protected scope of practice. In discharging the state's responsibility to protect the public from harm, the state's licensing authority determines what level of licensed practitioner or unlicensed person can perform a particular task.

In an attempt to clarify the relationship between nurses and unlicensed assistive personnel, considerable attention has been placed on understanding the processes of delegation, assignment, and supervision. Although these processes have similar meanings in most states, at least two states, California and New York, have either different definitions or particular prohibitions. Nurses practicing in these two states should familiarize themselves with the differences. There is nothing magical with the concept of delegation and it should not be considered universal protection against risk of malpractice and/or professional discipline. Registered nurses would be better served to remember that they are always responsible for permitting only individuals that they know are prepared by licensure, education, training, or competency to provide care to patients.

When planning care, an RN must match the right practitioner or worker with the patient and the patient's need. Ethically and legally, if an RN lets another RN or LPN care for a patient whose needs exceed the RN's or LPN's competencies, the first RN is just as guilty of unsafe practice as an RN who permits a UAP to perform a task that only a licensed person should perform. The National Council of State Boards for Nursing has recognized this responsibility in its Five Rights of Delegation:

• Right Task: The task is appropriate for delegation;

• Right Circumstances: The appropriateness of the patient setting, available resources, and other relevant factors are considered;

• Right Person: The right person is delegating the right task to the right person to be performed on the right person;

• Right Direction/Communication: A clear, concise description of the task, including its objective, limits and expectations is given; and

• Right Supervision: Appropriate monitoring, evaluation, intervention, and feedback are provided (NCSBN, 1995).

Both the American Nurses Association (ANA) and the National Council of State Boards of Nursing (NCSBN) have attempted to provide additional direction in this arena by addressing the processes of delegation, assignment, and supervision. To NCSBN, "supervision is the provision of guidance/direction, evaluation and follow-up by the licensed nurse for the accomplishment of a nursing task delegated to unlicensed assistive personnel" (1995, p. 2). ANA provides a broad definition of supervision as "the active process of directing, guiding and influencing the outcome of an individual's performance of an activity or task" (1996, p. 13) and describes it as either on-site ( the delegator is physically present and available) or off-site (guidance is delivered through written, verbal, or electronic communication) (1996). Such clinical supervision is the 44 active process of directing, guiding and influencing the outcomes of an individual's performance of an activity or task" (ANA 1996, p. 13) and should not be confused with the definition of supervision in labor law that relates to individuals eligible for representation for purposes of collective bargaining.

NCSBN identifies delegation as the act of "transferring to a competent individual the authority to perform a selected nursing task in a selected situation in which the nurse retains accountability for the delegation" (NCSBN, 1995). The Council further cautions that inappropriate delegation or unauthorized practice of nursing tasks by a UAP may lead to legal action against the licensed nurse and/or UAP (NCSBN, 1995). ANA states that "delegation is the transfer of responsibility for the performance of a task from one person to another. The delegation of an activity passes on the responsibility for task performance but not the accountability for the process or the outcome of the task" (1996, p. 15). ANA further addresses what it categorizes as direct delegation (a specific, usually verbal, direction from the delegator for another person to perform a task/activity in a specific nursing care situation) and indirect delegation that involves using a list of tasks/activities that have been approved by the healthcare facility (ANA 1996). Since what types of tasks can be delegated differ across the states, nurses must be knowledgeable of their particular states' permitted and prohibited tasks.

In discussing assignment, ANA describes this activity as the shift of an activity or task from one person to another, and this shift includes both the responsibility and the accountability for the performance of the task/activity (ANA 1996). Assignment occurs between individuals of equal or similar skill, education, knowledge, and competency and involves tasks/activities within the person's scope of practice (RN:RN; LPN:LPN). Licensed healthcare practitioners whose legal scope of practice overlap may assign those tasks or activities that are shared (RN: LPN; RN:RT; RN:PT). As previously mentioned, these definitions of delegation and assignment are not applicable in California where differing definitions are in statute or in New York where a prohibition against delegation of nursing care is found in the unprofessional conduct regulations.

In addition to ANA's and NCSBN's statements, the specialty nursing organizations have rendered a variety of opinions on the use of unlicensed assistive personnel and the role of the professional nurse. Some of these statements include:

• American Association of Critical Care Nurses: AACN has established a competency-based curriculum for UAP and stresses that the RN must oversee the knowledge, skills, competency, and outcome-based evaluation of the program.

• American Association of Spinal Cord Injury Nurses: AASCIN has stated that the RN is responsible for practicing within the boundaries of the state's practice act and cannot delegate professional duties. Budgetary and resource considerations are not valid reasons for wrongful delegation. A UAP who does legally permissible nursing tasks should be under the direct supervision of the RN who has the authority to evaluate the UAP.

• American Nephrology Nurses Association: ANNA states that UAP must function under the state's nurse practice act, preferably with language specifically referring to the use of UAP in dialysis settings. It opposes the licensure of UAP, but supports certification of UAP in dialysis as a means of documenting a core competency level of knowledge. In the care of nephrology patients, only selected tasks should be delegated to LPNs and UAP.

• Association of Operating Room Nurses: AORN supports the delegation of nursing tasks as provided for in law and as implemented through guidelines developed by the profession. It opposes licensure or registration of surgical technologists.

• Emergency Nurses Association: ENA states that UAP in the emergency care setting must be appropriately trained, oriented and directly supervised by and responsible to professional emergency nurses.

• Intravenous Nurses Society: INA states that UAP may assist RNs in preparing equipment and recording statistics but should not be used in the role of delivering intravenous therapy.

• Tri-Council for Nursing (American Nurses Association, the National League for Nursing, Association of Nurse Executives, American Association of Colleges of Nursing): This Council has stressed the importance of using UAP in a manner that ensures appropriate delegation and assignment of nursing functions and adequate direction and supervision of individuals to whom nursing activities are delegated. The RN retains responsibility for the services provided by the personnel to whom these activities have been delegated or assigned, and RNs and LPNs are accountable for their respective individual nursing activities (ANA 1997).

While it is instructive and helpful to understand the distinction regarding delegation and assignment and the need for supervision and retention of responsibility for outcomes, what is most important is to understand that the practice of nursing is a complete and legally- protected scope of practice, and it is and always will be more than a lists of tasks. It is damaging fiction to think that one can establish lists of tasks for licensed nurses and UAP that in all circumstances will be a universal guide that will protect patients from harm and nurses from the risks of inappropriate delegation and assignment or failure to supervise. It is better to develop a clear understanding of what constitutes the legally protected practice of nursing and to never permit UAP to perform tasks that require the knowledge and judgment of nurses. Licensed nurses can acquire such knowledge by:

• becoming very familiar with the Nurse Practice Act of the state in which they practice and staying up-to-date regarding any changes in the practice act;

• learning the rules and regulations that are associated with the Nurse Practice Act, especially those addressing unprofessional conduct and illegal acts; learning the laws and regulations (federal, state, and local) that govern practice in the healthcare setting in which one practices;

• becoming familiar with institutional workplace policies and all applicable position descriptions;

• knowing the collective bargaining agreement if a union represents any of the employees and any relevant provisions regarding the protected worker and the delivery of patient care;

• understanding the expected and actual competencies of all members of the health care team (RNs, LPNs, OTs, RTs, PTs, SWs, UAP);

• maintaining knowledge of the generic and specialty professional standards of clinical nursing practice, the Code for Nurses, Nursing: A Social Policy Statement, and other applicable professional nursing publications;

• requesting an opinion from the board of nursing and sharing this information with colleagues when unsure about any particular practice; and

• seeking assistance in clarifying practice issues from the state nurses association.

The Code for Nurses stresses that professional nurses are accountable for the delivery of safe, competent care to those patients entrusted to them; this obligation is founded on the ethical principles of fidelity and respect for persons. The Code for Nurses reminds nurses that they have a professional responsibility to the public and the profession at large to ensure that safe and competent care is provided to patients, that the standards of the profession are maintained, and that the essential elements of professional nursing are not delegated to others (Code, 1985; NYSNA, 1996). Most importantly, RNs and LPNs must be aware of their individual strengths and weaknesses and when it would be appropriate and necessary to protect the patient by refusing an assignment because they lack the knowledge or skill. Likewise, RNs and LPNs must request or seek additional education and/or training to maintain competency. They should also request an orientation to working with UAP that includes learning the correct process in identifying tasks and providing supervision.

UAP do not have a scope of practice; they can assist nurses by performing health-related activities that are outside the legally- protected scope of nursing practice. Health-related activities do not require nursing skill or judgment and produce predictable results. Furthermore, health-related activities adhere to standardized procedures and can easily be assigned by either verbal direction or the use of an approved list of tasks. Such activities can include the following: activities of daily living (feeding, drinking, ambulating, turning, grooming, toileting, dressing); collecting data (vital signs, weights); collecting simple specimens (stool, urine); transporting patients; restocking supplies; clerical duties; housekeeping tasks and even some more advanced tasks such as obtaining EKGs and blood specimens.

Activities that are clearly within the legally-protected scope of nursing practice must be provided by RNs and LPNs. For example, UAP cannot be asked to perform any activities on patients whose status is unstable; activities which require assessment, problem solving, judgment, or evaluation; or activities for which the outcome is unpredictable. Generally, nursing care involving sterile technique, intravenous therapy, medication administration, and invasive. procedures are within the protected scope of nursing practice. Some states have specific laws, rules, or regulations permitting some nursing activities to be performed by unlicensed assistive personnel under special circumstances. Remember to assess the following six risk factors before permitting a UAP to perform an activity or task:

• What is the potential for harm?
• What is the condition or stability status of the patient?
• What is the complexity of the activity/task?
• Is there a potential for problem solving or innovation?
• Can the predictability of the outcome be determined?
• What level of interaction with the patient is needed for a positive outcome? (AACN, 1990)

During the process of assessing the risk factors associated with permitting unlicensed assistive personnel to perform a task, the licensed nurse (RN or LPN) is responsible and accountable for the following:

• knowing which health-related activities can be assigned to the UAP;
• completing all assessments and clinical decision making related to the patient and determining what tasks can safely be performed by assistive personnel;
• communicating the identified health-related activity appropriately to the UAP;
• providing appropriate supervision for the UAP's performance;
• determining that the outcomes of care are appropriate.

Since the UAP is hired by a health care facility, the particular facility is responsible for the following:

• developing appropriate and legally-acceptable job descriptions;
• hiring capable people for the UAP role;
• providing appropriate education and training for the UAP; conducting staff education for RNs and LPNs in working with the UAP;
• communicating information about the UAP's stage of learning and level of competency to the nurse who is responsible for supervising the UAP;
• determining the competency of the UAP;
• when necessary, terminating the UAP for substandard performance (Saskatchewan, 1992).

Most recently, there has been considerable debate about what additional activities are necessary to ensure the safe use of UAP. This debate has included proposals for standardized curricula, mandatory or voluntary certification, licensure, or registration. Currently, federal law and regulations have specific standards for certified nursing home assistants and home health aides. Some states have similar types of requirements for assistants in acute care facilities.

The problem with establishing any formal educational curriculum for the UAP, is that such an action would infer that there is a scope of activity (practice) that could be isolated and taught to the UAP. Nursing administrators should be free to determine how to use the UAP to legally assist in the delivery of care in a particular setting, making the training specific to the patient care setting. It is granted that certain settings (nursing homes and home care) already have some standardized educational requirements. Examples of some basic curriculum components that could be included in setting specific training for the UAP are: basic human needs (fluids, food, elimination, rest and sleep, physical protection, effective communication); activities of daily living (dressing and undressing, feeding, personal hygiene and grooming, toileting, locomotion, housekeeping); and psychosocial. and cultural information. These types of activities, when made specific to the needs of the patient in a specific setting will provide the nurse with the "extra pair of hands" needed to assist in caring for patients. It would also be helpful if the profession of nursing established a minimal level of formal education and basic abilities required of individuals applying for UAP positions.

To assure that there is safe use of the UAP in all patient care settings, it would be helpful to have:

• clear prohibitions in each state's laws against unlicensed assistive personnel performing care within the legally-protected scope of nursing practice;

• guidance from professional nursing organizations to support nurses in understanding how to provide nursing care with assistance from other licensed practitioners (e.g., LPNs, RTs, PTs, OTs) and UAP;

• authoritative interpretations issued by each state's board of nursing on the legally-protected scope of nursing practice within its state; and

• the development of meaningful discipline for the illegal practice of nursing by unlicensed individuals. Such discipline should be controlled by the same state agency that is responsible for the discipline of registered professional nurses and licensed practical nurses.

Increasingly, the consumer of healthcare (the patient) is becoming interested in who is providing care. Some of this interest is directly related to the ANA's Every Patient Deserves a Nurse campaign, promotion of a Patient Safety Act in the U.S. Congress, and efforts by various state nurse associations to address similar campaigns and legislative initiatives at the state level. There have also been some interesting surveys (Figure 1) that relate to consumers' and nurses' perspectives of the quality of care that is being delivered and received. In a American Hospital Association survey (1997) respondents identified the following: the quality of care has been declining; nursing is a main indicator of quality in hospital care; skilled nurses are being systematically replaced by poorly- trained and poorly-paid aides; the profit motive is behind the reduction in nursing care; and insurance companies or hospital corporations are responsible for hospitals' cutting staff at the expense of patients.

Professional nurses must ensure that patients are provi ded safe, high-quality nursing care and are not placed in harm's way. Nurses who are familiar with their state's nurse practice act, all applicable state rules and regulations, the standards of practice, and ethics of the profession and institutional policies will be well positioned to appropriately use unlicensed assistive personnel in delivering care to the patient. A clear understanding of what constitutes nursing's legally-protected scope of practice is the best protection against the inappropriate delegation of nursing care and in reducing one's exposure to malpractice or professional discipline.

American Association of Critical Care Nurses. (1990). Delegation of nursing and non-nursing activities in critical care: framework for decision making. Laguna Niguel, CA: Author.

American Hospital Association. (1997). Reality check. Public perceptions of health care and hospitals. [Video]. Chicago, IL: Author.

American Nurses Association. (1985). Code for nurses with interpretative statements. Kansas City, MO: Author.

American Nurses Association. (1992). Registered nurse utilization of unlicensed assistive personnel. Washington, DC: Author.

American Nurses Association. (1996).Registered professional nurses and unlicensed assistive personnel(2nd ed.). Washington, DC: American Nurses Publishing.

American Nurses Association. (1997). Summary of position descriptions related to unlicensed assistive personnel - NOLF Organizations. (Available from the American Nurses Association, 600 Maryland Avenue, SW, Suite 100 West, Washington, DC, 20024).

Green, A., Cady, C., Waddell, L., & Fitzpatrick, 0. (1995). Are you at risk for disciplinary action? American Journal of Nursing, 95 41-45.

Institute of Medicine. (1996). Nursing staff in hospitals and nursing homes: Is it adequate? Washington, DC: National Academy Press.

Krapohl, G., & Larson, E. (1996). The impact of unlicensed assistive personnel on nursing care delivery. Nursing Economic$, 14 99-122.

National Council of State Boards of Nursing (NCSBN). (1995). Delegation: Concepts and decision-making process. Chicago, IL: Author.

New York State Nurses Association. (1996). Ethical guidelines for the utilization of unlicensed assistive personnel. Latham, NY: Author.

Saskatchewan Registered Nurses' Association. (1992). The registered nurse's scope of practice: Guidelines for decision-making and delegation. Regina, SK: Author.

Karen A. Ballard, MA, RN, was the Director, Nursing Practice and Services Program and now the Director of Practice and Governmental Affairs of the New York State Nurses Association, Latham, New York.

E. Joyce Gould, MS, RN, was the Director, Legislative Program, New York State Nurses Association, Latham, New York.

Updated Selected References: 1999 through June 2001

Note: These references are not part of the independent study module, but are provided to you as suggestions for additional reading.

Higgenbotham, E.L. (July 2000). Advice of counsel, your responsibility when an assistant gives an injection. RN, 63 (7), 73-74.

Laben, J.K., Banks, J.G. (November 1999). Litigation against nursing homes for falls: suggested strategies for prevention. Journal of Nursing Law, 6 (3), 21-28.

Mahlmeister, L. (May June 1999). Professional accountability and legal liability for the team leader and charge nurse. Journal of Obstetric Gynecologic & Neonatal Nursing, 28 (3), 300-9.

Murphy, E.K. (January 1999). OR nursing law. RN liability exposure for delegated acts. AORN Journal 69 (1), 277-279.

FIGURE 1

Annotated List of Current Surveys Related to Consumers' and Nurses' Perspectives on Quality of Care Issues Mark A. Genovese and Warren G. Hawkes

Concern is growing about the quality of health care in the United States, according to several recent public-opinion surveys. They indicate that the public believes nursing plays an important role in the delivery of quality care. Market driven restructuring, however, has led to nursing staff cutbacks and a shortage of RNs at the patients' bedside. As a result, patients believe the quality of care they receive is declining and that consumers have lost control of the health care system. Furthermore, several studies indicate that nurses themselves share these beliefs. Below is a sample of some recent surveys on quality of care issues:

Reality check: Public perceptions of health care and hospitals (1997). [Video]. Chicago, IL: American Hospital Association.

Nothing is more important to the future of the nation's hospitals than trust, but according to this report, it seems this trust is being lost. The survey found that many patients see themselves as increasingly unable to control their own medical care and are daunted by the prospect of navigating a system they no longer understand. Researchers contacted 23,000 patients in 31 focus groups in 12 states and conducted telephone interviews with 1,000 registered voters. According to the survey, respondents:

• Feel the quality of care has declined during the past few years.
• Point to nursing as an indicator of quality in hospital care.
• Hold a strong belief that skilled nurses are being systematically replaced by poorly trained and poorly paid aides.
• Believe the profit motive is behind the reduction in nursing care.
• Blame insurance companies or hospital corporations for cutting staff at the expense of patients.

How Americans perceive the health care system. (1997).
Washington, DC: National Coalition on Health Care.

This nationwide poll of 1,011 American households found a "disturbing lack of confidence" among consumers with the state and direction of health care and concern about health care quality, cost, and coverage. It indicated consumers feel they are paying more and getting less while providers are profiting. The survey also found:

• 87% say the quality of care needs to be improved.
• 80% blame the profit motive for compromising quality.
• 72% want the government to play a role in cost containment and quality assurance.
• 80% of respondents believe something is seriously wrong with the health care system.
• Only 15% said they have "complete confidence" in hospital care.
• Only 44% expressed confidence that the health care system will take care of them.

Eye on patients: A report to the American public. (1997). Boston, MA: Picker Institute.

This survey of 23,763 hospital patients and 13,363 patients in clinics and doctors' offices throughout the nation in 1996, said consumers find the health care system "confusing, expensive, unreliable, and often impersonal." It said patients were concerned they did not have a role in making decisions about their own care, and that insurance companies were making more and more of such determinations. Other significant findings:

• 36% of hospital patients said they did not have enough say about their treatment.
• 21% of clinic patients said they were not as involved in decisions as they wanted to be.
• 33% of hospital patients said they feel poorly prepared to go home.
• 30% of hospital patients said they were not told about danger signals to watch for after they went home.

One million patients have spoken: Who will listen? (1997) South Bend, IN: Press, Ganey Associates.

Interpersonal issues such as attitude, interactive skills, and caring behavior were the factors most closely associated with the patient's overall satisfaction with a hospital and the likelihood of recommending it to others. Compiling data from 545 hospitals in 44 states, Press, Ganey received responses from more than one million patients between December 1995 and November 1996. The issues most closely correlated with likelihood of recommending a hospital were related to nursing: