Avoiding Legal Minefields In Public School Nursing

Transcription

1 Avoiding Legal Minefields In Public School Nursing A Presentation for The 32 nd Annual Virginia School Nurses Association By Mary McGowan, Division Counsel Prince William County Public Schools

2 The Ever Expanding Legal Landscape Section 504 of the Rehabilitation Act of 1973 (Section 504) Americans with Disabilities Act (ADA) Individuals with Disabilities Education Act (IDEA) Food Safety and Modernization Act of 2010 Health Insurance Portability and Accountability Act of 1996 (HIPAA) Family Education Rights and Privacy Act (FERPA) Virginia Code and Regulations Guidelines for Students with HIV, Hepatitis B Guidelines and Procedures for Concussions in Student Athletes Obligations toward Students at Risk for Suicide Treatment of Anaphylaxsis and Protection for Life Threatening Allergies Diabetes and Oversight of Student Self Care Reporting of Child Abuse and Neglect

3 Most Common Legal Challenges Child Protective Services Investigations Administrative Complaints School Division internal complaint procedures Office of Civil Rights of U.S. Department of Education (OCR) Civil Actions filed in State or Federal court

4 Issues Arising at the Intersection of Education and Medicine Different Standards of Care/Performance Different Professional Obligations Ethical Restrictions Duty to act in the interest of student safety or health, even when in conflict with educational administration.

5 CPS Investigations Violation of Duty to Report Suspected Child Abuse or Neglect Complaints Against School Personnel for Abuse or Neglect

6 Duty to Report Reasonable Suspicion of Child Abuse or Neglect Va. Code Section A. The following persons who, in their professional or official capacity, have reason to suspect that a child is an abused or neglected child, shall report the matter immediately to the local department of the county or city wherein the child resides or wherein the abuse or neglect is believed to have occurred or the Department s (Virginia Department of Social Services) toll free child abuse and neglect hotline: (1) Any person licensed to practice medicine or any of the healing arts; (2) Any hospital resident or intern, and any person employed in the nursing profession;... (5) Any teacher or other person employed in a public or private school, kindergarten or nursery school.

7 When to Report: Within 24 hours after having reason to suspect abuse or neglect. Failure to timely report fine of no more than $500 for first offense, and no less than $1000 for subsequent failures Knowing and intentional failure to report acts of rape, sodomy, or object sexual penetration criminal violation (Class 1 misdemeanor).

8 Who Must Report: You, if you reasonably suspect child abuse or neglect. Caveat: in a hospital, school, or similar institution, the person suspecting the abuse or neglect may immediately notify the person in charge, i.e., the principal or his/her designee, who must make the report. The principal or designee must also notify the person suspecting the abuse or neglect when the report is made and the name of the individual receiving the report, and must provide the person who suspected the abuse or neglect with information regarding any actions taken as a result of the report. If no report is timely made by principal or designee, PICK UP THE PHONE AND REPORT IT YOURSELF ( ).

9 Statutory Immunity For Reporting Abuse or Neglect Va. Code Section (C): Any person who makes a report or provides records or information pursuant to subsection A or who testifies in any judicial proceeding arising from such report, records, or information shall be immune from any civil or criminal liability or administrative penalty or sanction on account of such report, records, information, or testimony, unless such person acted in bad faith or with malicious purpose.

10 What is Reason To Suspect? Must have some articulable evidence See, Training: Recognizing and Reporting Child Abuse and Neglect (for Educators) Resources and Guidelines: A Guide for Mandated Reporters In Recognizing and Reporting Child Abuse & Neglect; Mandated Reporter Overview of Recognizing and Reporting Child Abuse and Neglect. A person who is required to report suspected child abuse or neglect may talk to any child suspected of being abused or neglected or to any of his siblings without consent of and outside the presence of his parent, guardian, legal custodian, or other person standing in loco parentis, or school personnel. Va. Code Section

11 Release of Student Records to CPS Va. Code Section (B): Any person required to make a report pursuant to this section shall disclose all information that is the basis of the suspicion of abuse or neglect of the child and, upon request, shall make available to the child protective services coordinator and the local department, which is the agency of jurisdiction, any information, records or reports that document the basis for the report. All persons required to report... shall make related information, records and reports available to the investigating agency unless such disclosure violates the federal Family Educational Rights and Privacy Act.

12 Family Educational Rights and Privacy Act (FERPA) Prohibits the release of student educational records or information contained in such records to any third party without consent of the student (if over 18) or parent (if student is under 18). Exceptions include: Anyone within the School Division with legitimate educational interest in the student record or information. 34 C.F.R. Section (a) (1); Disclosure to appropriate parties in health and safety emergencies (knowledge of the information is necessary to protect the health or safety of the student or other individuals). 34 C.F.R. Section 99.36; and Where the information is allowed to be reported or disclosed pursuant to state statute (i.e., Va. Code Section ).

13 Complaints Against School Personnel Suspected of Child Abuse or Neglect Va. Code Sections and 1512: Standard is whether employee s acts or omissions constituted gross negligence or willfull misconduct, if acts or omissions were within employee s scope of employment and were taken in good faith in the course of supervision, care or discipline of students. Subject of complaint entitled to written notice of the general nature of the complaint and identity of child victim Requires CPS to conduct a face to face interview with subject of complaint May be represented by legal counsel in interviews. Written notice of the findings, summary of the investigation and explanation of how findings are supported by the evidence must be provided to the subject of the complaint. Applies to any person employed by a local school board or employed in a school operated by the Commonwealth.

14 Outcome of CPS Investigations Any person who has been the subject of a founded case of child abuse or neglect may not be employed by a public or private school. Va. Code Section Right to appeal founded any determination from a local CPS. Va. Code Section CPS investigation may parallel criminal investigation and prosecution. Reports of founded investigations maintained in Central Registry Reports of unfounded investigations maintained by local CPS Department for one year and purged if no further complaints. Subject of unfounded complaint can seek records through the Court if Court determines there is a reasonable issue of fact as to whether the complaint was made in bad faith or with malicious intent.

15 Best Practices re Reporting Suspected Abuse or Neglect to CPS Take the VDOE/VDOH training to understand the indicators of abuse and neglect used by CPS to identify a reasonable suspicion. Share your suspicions of abuse and neglect with other school personnel who may have additional information, especially school counselors, classroom teachers and administrators. Question the child and/or his/her siblings only enough to confirm your suspicion. Make darn sure your suspicions are timely reported by the principal/designee or do it yourself.

16 DOCUMENT, DOCUMENT, DOCUMENT Maintain updated and clearly written clinical records of all interactions with the child, parent/custodian, and school staff. Make sure records are understandable to the third party reader, who may be unfamiliar with medical or educational abbreviations or jargon. Print out and save all communications with parents/guardians, teachers, etc., relevant to the suspected abuse or neglect. Document all conversations and interactions with others relevant to your suspicions, WRITE IT DOWN! Record dates and times on all documentation to later produce a factual chronology of all interactions relevant to the suspected abuse or neglect. Photograph all indicators of physical abuse or neglect. Create a file of all documentation which does not include FERPA protected information unrelated to the health and safety of the child, so there is a record of what information was given to CPS.

17 Best Practices To Avoid or Respond to a CPS Complaint Against You Use your radar and professional experience to identify problematic situations, coworkers, students, or parents/guardians who may be quick to file a CPS complaint. Red Flags: Difficult to manage, serious, or stressful medical condition or injury Litigious, difficult, argumentative, or finger pointing parent/guardian Unclear, conflicting, or contraindicated medical services contained in IHP, Medical Management Plan, or 504 Plan. Death of student or very serious medical crisis or injury. Lack of support within the school for nursing services, or poor protocols for reporting, documenting, and responding to student injury or medical needs.

18 Best Practices Continued... Use coworkers as witnesses to critical communications with students, parents/guardians regarding student medical needs and services DOCUMENTATION: Encourage parents/guardians to use or written notes for such communications. Keep contemporaneous notes of such communications, in addition to standard clinical records (dated and in chronological order). Ask physicians to clarify in writing vague or conflicting information contained in orders, notes, IHPs, or other medical management plans or documents. In the event of such a complaint, prepare a narrative of your interactions with the student, with references to supporting documentation.

19 ADMINISTRATIVE COMPLAINTS Internal Complaints Federal laws require local school divisions to have internal procedures for the reporting, investigation and resolution of various student discrimination and harassment complaints, including those based on disability. Such complaints are typically investigated by Risk Management, Special Education, Student Services, or other administrative departments of the School Division.

20 OCR Complaints Investigated by the Office of Civil Rights ( OCR ) of the United States Department of Education. Enforces Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of These laws prohibit discrimination in the schools based on disability. Section 504 (and Title II of the ADA) require a plan be developed identifying the needs of, and services provided to, a student with a disability. Individualized Health Plan also developed under Section 504, Title II, and as appropriate, the IDEA, detailing the specific medical needs and services to be provided to a student with a disability. Complaints against school personnel, including nurses, often allege failure to provide services required by the Section 504 Plan, IHP, or other Medical Management Plan.

21 Anatomy of an OCR Complaint Parent dissatisfied with provision of services (educational or medical) files complaint with OCR. OCR provides written notice to School Division and demands student records and other data. School Division may retain legal counsel to defend complaint OCR may offer Early Complaint Resolution if desired by parent OCR attorneys investigate complaint OCR may conduct interviews of school staff and request additional documentation.

22 OCR Investigations continued... OCR may expand investigation beyond original complaint to other students, other schools within the Division, or to the entire Division Possible Results: Complaint resolved by mediation. OCR issues Letter of Determination, finding no violation of law by School Division. OCR informs School Division it is leaning toward finding the Division in violation of law and asks Division to negotiate a Resolution Agreement. OCR issues Letter of Determination, finding Division in violation of law and requiring correction/compliance or withdrawal of federal funding.

23 Best Practices To Sidestep or Defend an Administrative Investigation Follow student s 504 Plan, IHP or MMP faithfully, and record all services rendered as they are provided. Seek clarification in writing of any ambiguities or conflicts in such plans. Ask to be directly involved in the development of such plans, since you are the one with the medical expertise needed to determine what services can be safely provided to the student and under what conditions. Use your professional radar to identify problematic situations, students, coworkers, or parents/guardians likely to generate an OCR Complaint.

24 THEN, DOCUMENT, DOCUMENT, DOCUMENT Heighten the level of your documentation Keep a complete record of all interactions with student/teachers/aides/parent/guardian Remember the third party reader, and clarify your records accordingly. Print out all exchanges and save copies of all notes Keep a journal or calendar documenting date and time of all interactions and communications Maintain copies of all documentation in a separate folder For specific incidents, remember school security cameras may contain invaluable documentation preserve the same. In the event of a complaint Prepare a narrative referencing supporting documentation.

25 Civil Actions In State and Federal Court Commonly arise out of student injuries and accidents. Lawsuits may target School Board, principal, or other administrator, teachers, or nurses. However, under Virginia law, the School Board is immune to tort liability, as are school employees, such as nurses, who exercise judgment and discretion in the performance of their duties. Such school employees can only be sued in tort for gross negligence or willful misconduct. Usually, the School Division s insurer provides legal representation and pays any judgment assessed against a school employee acting within the scope of his/her employment.

26 Litigation continued... Some lawsuits may be filed under the federal nondiscrimination statutes in state, or more often, federal court. Again, these lawsuits usually trigger a legal defense and indemnification from the School Division s insurer. Often preceded by an administrative investigation May not be filed for years after the event triggering the lawsuit. (Student has until age 20 in most cases.) Anyone can file a lawsuit and make any allegation Proof comes at trial or on summary judgment

27 The Discovery Process Filing of the Complaint and Answer triggers the discovery process Purpose of discovery process is for each side to review the other side s evidence in anticipation of a trial on the merits. Involves requests for information (Interrogatories) and documents (Requests for Production and subpoenas), and depositions of parties and witnesses. Preparation for deposition and trial require extensive preparation and familiarity with the facts and records produced in discovery. How well will you remember the day Johnny took a nose dive off the playground slide and what his vital signs were when you reached him?

28 IT ALL COMES BACK TO DOCUMENTATION Same principles apply: Recognize early those situations and people likely to lead to litigation Document all interactions, services provided, communications with key players. Document clearly with date and time, author, all notations etc. Identify witnesses and contact information in your documentation so they can be found months or years later Keep a copy of such documentation separate and apart from student educational record. Remember to preserve photos, video, or other physical documentation relative to the incidents or injuries.

29 Mary McGowan Division Counsel Prince William County Public Schools