1. Legal Issues in Clinical Education Copyright 2008 by The Health Alliance of MidAmerica LLC

2. 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. 3-3 Faculty Status: Role and Risk; Risk and Role  Teaching offers personal and professional satisfaction.  To teach is to learn twice. – Joseph Joubert (1754-1824)

4. 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

5. 3-5 Understanding Risks: A parade of horribles…  Balancing Professional Expectations, Patient Welfare, and Instructional Needs

6. 3-6 Understanding Risks  Duties are owed to patients, employers, students, the institution, and the profession— but they are congruent.

7. 3-7 Understanding Risks  DUTY + BREACH { Present Causation and Damages } = Liability

8. 3-8 Understanding Risks  Duty and Standard of care

9. 3-9 Understanding Risks  Public institutions have Constitutional Duties and Private institutions often contract to protect these values.

10. 3-10 Understanding Risks  The secret of education is respecting the pupil. – Ralph Waldo Emerson

11. 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?

12. 3-12 Understanding Risks  Due Process Is there a property interest or a contractual obligation?

13. 3-13 Understanding Risks  Due Process Is this academic or a conduct based dismissal?

14. 3-14 Understanding Risks  Due Process If there is a property interest or a contractual obligation what process is due?

15. 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

16. 3-16 Understanding Risks  Substantive Due Process Whether the decision was fundamentally fair

17. 3-17 Understanding Risks  All persons are entitled to Equal Protection

18. 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.

19. 3-19 Understanding Risks  Harassment is a form of discrimination.

20. 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).

21. 3-21 Student Issues: Policies  Family Educational Rights and Privacy Act 1974 FERPA Buckley Amendment

22. 3-22 Student Issues: Policies  FERPA Regulates disclosure of student records Offers students the ability to review and challenge records

23. 3-23 Student Issues: Policies  FERPA Covers records which contain information that identifies student Disclosure must follow guidelines

24. 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.

25. 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

26. 3-26 Student Issues: Policies  Syllabi Evidence of our contract with our students.

27. 3-27 Student Issues: Policies  Academic Assessment Issues measurement of performance ability to perform

28. 3-28 Student Issues: Policies  Misconduct academic integrity (cheating) ethics

29. 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.

30. 3-30 Student Issues: Exceptional Circumstances  Ignorance more frequently begets confidence than does knowledge. – Charles Darwin, naturalist and author (1809-1882)

31. 3-31 Student Issues: American with Disabilities Act Accommodations are intended to provide equal opportunity to otherwise qualified students who meet the technical standards.

32. 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.

33. 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.

34. 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.

35. 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

36. 3-36 Insurance  Different types of insurance include professional liability, general liability and medical/health.

37. 3-37 Risk Management Through:  Using good communication  Maintaining appropriate documentation  Protecting sovereign immunity  Protecting academic abstention by exercising professional judgment

38. 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

39. 3-39 Summary Slide  Conclusion and Your Questions

40. 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