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Improving the Employer-Regulator Partnership: An Analysis of Employer Engagement in Discipline Monitoring
Improving the Employer-Regulator Partnership: An Analysis of Employer Engagement in Discipline Monitoring Farah Ismail, LL.B, MSc.N, RN, and Sean P. Clarke, PhD, RN, FAAN Employers are essential partners with health professions regulators in ensuring public safety and are critical to the success of discipline monitoring programs. However, working with discipline orders and the regulatory process often causes confusion and stress for employers. This article reviews the perspectives of regulators and employers regarding discipline monitoring in nursing as well as the legal and practical considerations. The article concludes by suggesting future directions for regulators and employers.
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mployers play a key role in ensuring the competent and ethical practice of nursing. Indeed, nursing regulators consider employers essential partners in the pursuit of public protection. Employers are often best situated to monitor their employees, maintain effective communication with them, and establish collaboration with regulators to ensure that nurses and practice settings are in compliance with standards of practice. Certainly, tracking nurses’ compliance with disciplinary panel orders, particularly restrictions on practice and provisions regarding monitoring of practice, requires the involvement and cooperation of employers. Studies reveal that the number of nurses sanctioned by regulators in the United States has increased during the past decade (Zhong & Kenward, 2009). In response to the increasing case volume, regulators have started to focus on employers as partners in oversight of the terms, conditions, and limitations on nurses’ practice. Employers, however, have expressed fears and concerns about and frustration with their involvement (Budden, 2011; Tanga, 2011). Moreover, employers’ understanding of their involvement varies widely across the range of institutions and clinical settings where nurses practice. Given these complexities, it is not surprising that employers’ understanding of the goals of discipline orders and their role in monitoring compliance are sometimes incomplete and that employers often request guidance from regulators. This article reviews the basis for disciplinary monitoring, analyzes the legal framework and the challenges faced by employers, examines strategies for increasing engagement, and identifies directions for improving employers’ engagement. In this article, the term employer refers to the administrators, managers, and staff members who provide oversight and evaluation of nursing practice in an organization.
Volume 5/Issue 3 October 2014
Legal Framework The practice of nursing requires the application of knowledge, skill, and judgment because unsafe or unethical practice poses risks of harm to the public. Governments have delegated the responsibility for public protection to regulators who are responsible for disciplining nurses through an administrative proceeding when performance falls below the standards of conduct (Leslie, 2012, p. 71). An incident of professional misconduct or incompetence may result in a referral to the disciplinary process if regulators determine that the act constitutes a breach of the standards of practice or shows a lack of integrity. An administrative proceeding typically follows and often results in a disciplinary order that includes findings of fact, conclusions of law, and suspension of licensure (Kelly, 2010) or terms, conditions, and limitations on licensure. Employers generally understand that it is their legal obligation to report criminal activity and substandard conduct to senior officials in their organizations in accordance with policies and procedures and in good faith and with reasonable belief that the information is true and not for personal gain (Cornock, 2011). If employers fail to disclose such information and patient harm results, they face potential legal exposure associated with negligent supervision (Tanga, 2011). Most employers also know that they are required to verify the licensure status of an employee with the relevant regulator, to ensure not only that the nurse holds a valid license but that the employment is in compliance with any restrictions on the nurse’s practice. Regulators rely on mandatory reporting as the main mechanism for employers to communicate concerns about a nurse’s practice. In fact, many jurisdictions have mandated a reporting framework for employers whereby they must report an intended or actual termination of a nurse or a nurse’s privileges for reasons of professional misconduct or incompetence.
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When nurses are disciplined, administrative rulings often create another reporting obligation for employers: the duty to advise regulators when nurses are not in compliance with disciplinary orders. Employers may be reluctant to participate in this part of the process because of the perceived burdens and risks of employing nurses with practice issues, yet employers also fear legal exposure if they are unwilling to accommodate nurses’ learning needs and reintegrate disciplined nurses into the workplace.
Remediation: The Basis for Disciplinary Monitoring In general, regulators take harsh and decisive disciplinary action in cases of deliberate harm to patients, concealment of errors, and reckless conduct (National Council of State Boards of Nursing [NCSBN], 2012). In these cases, the regulator assists employers by advising them of any system issues uncovered during an investigation and encourages employers to provide supervision, mentoring, and specific remediation for reckless behavior (NCSBN, 2012). Only a minority of the cases handled by regulators are related to criminality or willfully reckless conduct. In most cases, remediation of practice is the obvious approach. Remediation is defined as the process of evaluating, counseling, and educating a nurse to improve nursing practice (Harding & Connolly, 2012, p. 50). The focus on remediation in disciplinary orders is based on the idea that nurses’ continued competence and accountability for practice can be ensured through reflection on episodes of professional misconduct or incompetence. Consequently, remediation may not be suitable for nurses who engage in illegal and unethical acts if they cannot or will not accept responsibility for their actions (Collins & Mikos, 2008; Harding & Connolly, 2012). (See Table 1.) In remediation, regulators typically develop an action plan to address the error, and they want to collaborate with the employer in implementing it. The plan may include provisions for close supervision, mentoring, and remediation of specific knowledge and skill deficits (NCSBN, 2012). Framed in a blame-free and nonpunitive context, remedial measures include learning about and reflecting on nursing practice standards. The actual learning and evaluation strategies include competency assessments through direct observation, discussion, certification, peer review, root-cause analysis, simulation, testing, skills validation, role-playing, orientation, and return demonstration (Harding & Connolly, 2012, p. 49). All these approaches can be implemented easily in the workplace when employers’ roles are clearly defined. Clarifications are nonetheless needed to prevent role confusion and allow all to identify the disciplinary order as the authority for oversight of and modifications to a nurse’s practice (Harding & Connolly, 2012, p. 51).
Challenges for Employers Employers maintain sufficient numbers of qualified nurses to deliver safe, competent, effective care. As a result, employers may 20
Journal of Nursing Regulation
be concerned about possible disruption of workflow by discipline monitoring. In particular, employers may not believe they have the time, money, resources, skills, and experience to effectively monitor nurses (Tanga, 2011). Smaller institutions may have insufficient staff to participate in the process (Budden, 2011). In Budden’s survey (2011), representatives from 1,733 hospitals, home health agencies, and nursing homes returned surveys. The response rate of 22% did not differ across facility type. The majority of employers indicated they had not reported any nurses to the board of nursing (BON) for possible disciplinary action in the past year; however, respondents from hospitals were more likely to report that they had contacted the BON than respondents from home health agencies or nursing homes. No further exploration of these differences was done, and small clinics and small health facilities were not included in the study. Although this study deals with a different type of engagement in regulation (i.e., reporting), it suggests that regulators seeking to engage employers in discipline monitoring may need to adjust their approach across practice settings because the oversight, collaboration, and commitment to practice remediation may differ across settings (Kelly, 2010). Employers are also faced with special human-relations challenges when participating in discipline monitoring. Managers are required to orient, train, and support their nurses, yet employers involved in discipline monitoring must report deficiencies to the regulator, and such reports can have serious consequences. Employers may find it challenging to balance their empathy for and encouragement of nurses (Tanga, 2011) with their obligation to monitor and report. Employers may excuse, rationalize, or lament lapses in professionalism because of their relationships with nurses. They may find it challenging to be objective as they balance a nurse’s rights to freedom and privacy against disciplinary orders. Clearly, employers can play an important part in reintegrating disciplined nurses and assisting them in demonstrating the ability to practice competently and safely (Harding & Connolly, 2012). However, the work and stress of monitoring can appear to overshadow the rewards of successfully assisting nurses back into the fold of their workplaces and the profession at large. In their chapter, “Health care under the influence: Substance use disorders in the health professions,” Kunyk and Els (2012) discuss the concept of wearing two hats. Employers who hire nurses with substance use disorders must often be involved in their treatment while monitoring their behavior and performance. Employers participating in discipline monitoring face a similar situation. They have an ethical duty to protect patients (Tanga, 2011), but they may struggle with their loyalties to staff members (Hooper, 2011, p. 18). These similarities in substance use monitoring and discipline monitoring should be noted by regulators. Another challenge is the employers’ lack of familiarity with regulatory processes. Unless employers have first-hand experience with discipline, they typically are unfamiliar with these processes, and their lack of understanding may result in a failure to fulfill reporting obligations (Tanga, 2011). Although remediation is often
at the core of disciplinary orders, employers may not fully grasp this concept and thus may not understand their roles in the process. The findings of a large-scale national survey of U.S. physicians about beliefs and readiness for reporting impaired and incompetent colleagues hint at the main reasons licensed professionals may be averse to monitoring disciplinary orders. Findings suggest that licensed professionals believe the following: ⦁ Others in their organization deal with practice quality and conduct issues. ⦁ Reports often have no consequences. ⦁ Reporting is not their responsibility. ⦁ Reporting can lead to excessive punishment of colleagues. Some respondents to this survey also reported fearing retribution if they reported colleagues (DesRoches et al., 2010). Overall, the survey findings indicate that professional culture regarding discipline and misunderstandings about the principles of self-regulation may pose important barriers to ongoing involvement of employers. A culture of mutual respect between regulators and employers is needed to assist with the discipline-monitoring process. This culture can be created by regulators identifying core values, such as transparency and mutual accountability, and a shared vision with employers regarding responses to discipline processes (Leape et al., 2012, p. 853).
Directions for Regulatory Practice A consideration of the regulator’s goals and the legal and practical issues for employers can help provide direction for regulatory practice. Regulators also should consider the notion of engagement from a theoretical and conceptual point of view as well as proven methods for increasing engagement in their work with employers. Robertson-Smith and Markwick (2009, p. 27) highlighted six keys to engagement from their review of numerous studies in the consultancy academic literature: ⦁ Nature of the work ⦁ Perception of the work as having clear meaning and importance ⦁ Opportunities for growth and training ⦁ Recognition of efforts ⦁ Relationship building ⦁ Autonomy that inspires the confidence of the participants These factors can be incorporated into regulator strategies. Employers need to know that their involvement has a significant impact on the protection of the public and the public’s confidence in self-regulation. Strategies should build on employers’ knowledge as much as possible (O’Neill-Blackwell, 2012). Also, training and opportunities for dialogue and modification to training processes should be made available to employers, and methods should focus on the most common and highest-impact elements of the process (O’Neill-Blackwell, 2012). Recognizing employers’ contributions by providing positive feedback in face-to-face interactions can help build meaningful, lasting relationships. Finally, helping employers
Volume 5/Issue 3 October 2014
TABLE 1
Nurses Who Need Remediation In their exploratory qualitative study, Collins and Mikos (2008) identified groups of nurses who are candidates for remediation. Cases were classified, and themes were identified to provide a preliminary taxonomy of nurses who are disciplined. Although the framework has not been validated in other studies, the classification highlights two notable types of nurses who are targets for remediation: incompetents and rule benders. Incompetents are nurses who do not intentionally violate conduct standards; they simply lack the knowledge, skill, and judgment required to perform nursing skills (Collins & Mikos, 2008, p. 88). Remediation is the obvious choice for these nurses (Collins & Mikos, 2008, p. 88). ⦁⦁ Rule benders are nurses who intentionally violate nursing conduct standards, but generally have good intentions (Collins & Mikos, 2008, p. 88). Rule benders may especially benefit from education about strategies for proactively and directly addressing rather than working around problems (Collins & Mikos, 2008, p. 88). ⦁⦁
Regulators tend to feel that current or future employers should be involved in remediation for incompetents and rule benders (Collins & Mikos, 2008). Because employers have close contact with nurses and ample opportunity to observe nurses’ practice, they can easily share responsibility with the regulator for monitoring, particularly given their knowledge and expertise about acceptable standards of conduct and awareness of contexts that affect professional practice.
adapt recommended guidelines to their own institutional needs will further engage them in the process. Collaborative self-regulation is a process in which partnerships are developed between the regulator and key stakeholders (specifically, employers) to meet the regulator’s responsibility for protection of the public (College of Registered Nurses of British Columbia [CRNBC], 2012; Lahey, 2009, p. 26). Collaborative self-regulation involves equipping employers with the tools to support nurses in providing safe care, entering into a dialogue with employers to enhance communication, developing expectations, and creating shared accountability. Discipline monitoring can be enhanced by providing employers with information and resources; harmonizing standards, expectations, and approaches; and eliminating unnecessary differences among processes and outcomes (CRNBC, 2012; Lahey, 2009, p. 26). Key principles that guide the development of a collaborative self-regulation approach include the following: ⦁ Building on employers’ access to nurses and their awareness of the clinical challenges and vulnerabilities ⦁ Designing solutions that address problems and vulnerabilities and otherwise leave the regulatory process to run its course
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Learning from existing collaborations, such as the alternativeto-discipline monitoring process in which regulators and employers collaborate and monitoring improves ⦁ Avoiding duplication by shifting resources to areas of need and by clarifying goals and expectations. There are numerous specific strategies the regulator can use to help promote employer engagement in discipline monitoring. A public register, such as Nursys®, which provides verification of licensure status at the time of hiring and on a regular basis, promotes the employer’s awareness of current discipline orders (Brooks, 2008). Another approach is developing courses related to specific practice issues. The North Carolina BON designed courses on medication administration, law, and ethics in nursing (Lewallen & McMullan, 2011) and then recruited and trained instructors. Regulators can also publish resources, such as regulatory issues columns in professional and trade publications, or send out their own quarterly newsletters to keep employers abreast of trends related to misconduct and incompetence (Hudspeth, 2008). Similarly, training can be provided in the form of online modules or handbooks. Programs on employers’ roles in and responsibilities for discipline monitoring could be developed. Such initiatives reinforce employers’ understandings that regulators are their partners in promoting safe practice. The literature on employer monitoring of nurses with substance use disorders demonstrates that employers can and do participate in joint monitoring with regulators, and it provides direction for overcoming barriers. In 2011, the National Council of State Boards of Nursing produced the Substance Use Disorder in Nursing manual to provide practical, evidence-based guidelines. In part, the aim was to create benchmarks for standardization of theoretical and practical concepts for use by employers acting as monitors (Darbro, 2011). Specifically, this work identifies the criteria, responsibilities, and expectations for the monitoring process; the methods for monitoring; the consequences for noncompliance; the model policies and procedures; and the annual program evaluation (Darbro, 2011; Monroe, Vandoren, Smith, Cole, & Kenaga, 2011). Horton-Deutsch, McNelis, and O’Haver Day (2011) explored the nurse’s experience in an alternative-todiscipline treatment program, in which three focus groups with 25 participants were conducted. The overall theme that evolved was the need to enhance mutual accountability of the nurse and the employer to improve treatment and recovery. The same approach can be considered and developed with respect to employer monitoring of disciplinary orders. Bettinardi-Angres and Bologeorges (2011) conducted a twophase, mixed-methods study on the barriers to reporting colleagues suffering from substance use disorders and the resources for helping them. Fifty-five nurses were involved in the study, and although it focused on alternatives to discipline and not discipline monitoring, the findings revealed that “[fear of] confrontation is a barrier” (p. 14) when addressing sensitive issues with colleagues. Enhancing ⦁
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knowledge about the regulator’s considerations through workplace protocols and policies may help. Cadiz, Truxillo, and O’Neill (2012) conducted a pretestposttest evaluation of a training program for supervisors. The program was designed for supervisors required to recognize performance problems, intervene effectively, and manage routine issues of nurses enrolled in an alternative-to-discipline program (Cadiz, Truxillo, & O’Neill, 2012). The evaluation found that improving knowledge and competence had a positive impact on learning and training outcomes (Cadiz et al., 2012). In addition, the results suggest that training positively affected the confidence to supervise nurses enrolled in alternative-to-discipline programs and had the potential to create a more supportive workplace by reducing the stigma associated with substance use (Cadiz et al., 2012). This program could serve as a model for the development of a training program on professional misconduct and incompetence.
Conclusion Employers and regulators have different roles in discipline monitoring, but some common interests can be leveraged. Both need to recognize and appreciate the other’s realities and acknowledge the challenges that the other faces. Regulators need to be clear about the need for employer engagement in discipline monitoring, and employers need to accept that their participation is required. Even with the minimal research conducted in this area, there are a number of clear directions for initiatives to address attitude and knowledge barriers and ultimately improve cooperation and enhance employer engagement in discipline monitoring.
References
Bettinardi-Angres, K., & Bologeorges, S. (2011). Addressing chemically dependent colleagues. Journal of Nursing Regulation, 2(2), 10–17. Brooks, J. R. (2008). US legislators drive accountability measures. Canadian Medical Association Journal, 178(6), 671–672. doi:10.1503/ cmaj.080209 Budden, J. (2011). A survey of nurse employers on professional and practice issues affecting nursing. Journal of Nursing Regulation, 1(4), 17–25. Cadiz, D., Truxillo, D., & O’Neill, C. (2012). Evaluation of a training program for nurse supervisors who monitor nurses in an alternative-to-discipline program. Advances in Nursing Science, 35(2), 135–144. College of Registered Nurses of British Columbia. (2012). Underlying philosophies and trends affecting professional regulation. Vancouver, Canada: Author. Collins, S. E., & Mikos, C. A. (2008). Evolving taxonomy of nurse practice act violators. Journal of Nursing Law, 12(2), 85–91. Cornock, M. (2011). Whistleblowing: A legal commentary. Nursing Children and Young People, 23(8), 20–21. Darbro, N. (2011). Model guidelines for alternative programs and discipline monitoring programs. Journal of Nursing Regulation, 2(1), 42–49.
DesRoches, C. M., Rao, S. R., Fromson, J. A., Birnbaum, R. J., Iezzoni, L., Vogeli, C., & Campbell, E. G. (2010). Physicians’ perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. JAMA, 304(2), 187–193. Harding, D., & Connolly, M. W. (2012). Remediation: A necessary function for employers to correct incompetence regarding clinical professional registered nurse practice. JONA’s Healthcare Law, Ethics, & Regulation, 14(2), 48–52. Hooper, S. (2011). Understanding the ethics of whistleblowing by nurses. Journal of the Australasian Rehabilitation Nurses’ Association, 14(3), 18–20. Horton-Deutsch, S., McNelis, A., & O’Haver Day, P. (2011). Enhancing mutual accountability to promote quality, safety, and nurses’ recovery from substance use disorders. Archives of Psychiatric Nursing, 25(6), 445–455. Hudspeth, R. (2008). Failing the duty to report: Disciplinary exposure risk for the chief nursing officer. Nursing Administration Quarterly, 32(4), 349–350. Kelly, T. (2010). How to explore pre-disciplinary resolution of substandard practice cases. Journal of Nursing Regulation, 1(3), 58–61. Kunyk, D., & Els, C. (2012). Health care under the influence: Substance use disorders in the health professions. In Luciano L’Abate (Ed.). Mental illnesses—Evaluation, treatments and implications. Retrieved from www.intechopen.com/books/mental-illnesses-evaluation-treatments-and-implications/health-care-under-the-influence-substance-use-disorders-in-the-health-professions Lahey, W. (2009). Collaborative self- regulation and professional accountability in Nova Scotia’s health care system. Halifax, Nova Scotia: Nova Scotia Health Professions Regulatory Network. Leape, L. L., Shore, M. F., Dienstag, J. L., Mayer, R. J. Edgman- Levitan, S., Meyer, G. S., & Healy, G. B. (2012). Perspective: A culture of respect: Part 2: The nature and causes of disrespectful behaviour by physicians. Academic Medicine, 87, 853–858. Leslie, K. (2012). Recent changes to governance and accountability of the regulated health professionals in Ontario. Nursing Leadership, 25, 70–80. Lewallen, L. P., & McMullan, K. G. (2011). Returning to competence after discipline. JONA’s Healthcare, Law, Ethics, and Regulation, 3(3), 88–91. Monroe, T., Vandoren, M., Smith, L., Cole, J., & Kenaga, H. (2011). Nurses recovering from substance use disorders: A review of policies and position statements. Journal of Nursing Administration, 41(10), 415–421. National Council of State Boards of Nursing. (2012). Regulatory model for discipline [Brochure]. Chicago, IL: National Council of State Boards of Nursing 2012 Annual Meeting. O’Neill-Blackwell, J. (2012). Engage—The trainer’s guide to learning styles. San Francisco, CA: Pfeiffer. Robertson-Smith, G., & Markwick, C. (2009). Employee engagement—A review of current thinking. Brighton, UK: Institute for Employment Studies. Tanga, H. Y. (2011). Nurse drug diversion and nursing leader’s responsibilities: Legal, regulatory, ethical, humanistic, and practical considerations. JONA’s Healthcare Law, Ethics and Regulation, 13(1), 13–16. Zhong, E. H., & Kenward, K. (2009). Factors affecting remediation outcomes. Chicago, IL: National Council of State Boards of Nursing.
Volume 5/Issue 3 October 2014
Farah Ismail, LL.B, MSc.N, RN, is Manager, Prosecutions and Monitoring, Professional Conduct, College of Nurses of Ontario, Toronto, Canada. Sean P. Clarke, PhD, RN, FAAN, is Professor and Associate Dean, Undergraduate Program, William F. Connell School of Nursing, Boston College, Chestnut Hill, Massachusetts.
www.journalofnursingregulation.com
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E
mployers play a key role in ensuring the competent and ethical practice of nursing. Indeed, nursing regulators consider employers essential partners in the pursuit of public protection. Employers are often best situated to monitor their employees, maintain effective communication with them, and establish collaboration with regulators to ensure that nurses and practice settings are in compliance with standards of practice. Certainly, tracking nurses’ compliance with disciplinary panel orders, particularly restrictions on practice and provisions regarding monitoring of practice, requires the involvement and cooperation of employers. Studies reveal that the number of nurses sanctioned by regulators in the United States has increased during the past decade (Zhong & Kenward, 2009). In response to the increasing case volume, regulators have started to focus on employers as partners in oversight of the terms, conditions, and limitations on nurses’ practice. Employers, however, have expressed fears and concerns about and frustration with their involvement (Budden, 2011; Tanga, 2011). Moreover, employers’ understanding of their involvement varies widely across the range of institutions and clinical settings where nurses practice. Given these complexities, it is not surprising that employers’ understanding of the goals of discipline orders and their role in monitoring compliance are sometimes incomplete and that employers often request guidance from regulators. This article reviews the basis for disciplinary monitoring, analyzes the legal framework and the challenges faced by employers, examines strategies for increasing engagement, and identifies directions for improving employers’ engagement. In this article, the term employer refers to the administrators, managers, and staff members who provide oversight and evaluation of nursing practice in an organization.
Volume 5/Issue 3 October 2014
Legal Framework The practice of nursing requires the application of knowledge, skill, and judgment because unsafe or unethical practice poses risks of harm to the public. Governments have delegated the responsibility for public protection to regulators who are responsible for disciplining nurses through an administrative proceeding when performance falls below the standards of conduct (Leslie, 2012, p. 71). An incident of professional misconduct or incompetence may result in a referral to the disciplinary process if regulators determine that the act constitutes a breach of the standards of practice or shows a lack of integrity. An administrative proceeding typically follows and often results in a disciplinary order that includes findings of fact, conclusions of law, and suspension of licensure (Kelly, 2010) or terms, conditions, and limitations on licensure. Employers generally understand that it is their legal obligation to report criminal activity and substandard conduct to senior officials in their organizations in accordance with policies and procedures and in good faith and with reasonable belief that the information is true and not for personal gain (Cornock, 2011). If employers fail to disclose such information and patient harm results, they face potential legal exposure associated with negligent supervision (Tanga, 2011). Most employers also know that they are required to verify the licensure status of an employee with the relevant regulator, to ensure not only that the nurse holds a valid license but that the employment is in compliance with any restrictions on the nurse’s practice. Regulators rely on mandatory reporting as the main mechanism for employers to communicate concerns about a nurse’s practice. In fact, many jurisdictions have mandated a reporting framework for employers whereby they must report an intended or actual termination of a nurse or a nurse’s privileges for reasons of professional misconduct or incompetence.
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When nurses are disciplined, administrative rulings often create another reporting obligation for employers: the duty to advise regulators when nurses are not in compliance with disciplinary orders. Employers may be reluctant to participate in this part of the process because of the perceived burdens and risks of employing nurses with practice issues, yet employers also fear legal exposure if they are unwilling to accommodate nurses’ learning needs and reintegrate disciplined nurses into the workplace.
Remediation: The Basis for Disciplinary Monitoring In general, regulators take harsh and decisive disciplinary action in cases of deliberate harm to patients, concealment of errors, and reckless conduct (National Council of State Boards of Nursing [NCSBN], 2012). In these cases, the regulator assists employers by advising them of any system issues uncovered during an investigation and encourages employers to provide supervision, mentoring, and specific remediation for reckless behavior (NCSBN, 2012). Only a minority of the cases handled by regulators are related to criminality or willfully reckless conduct. In most cases, remediation of practice is the obvious approach. Remediation is defined as the process of evaluating, counseling, and educating a nurse to improve nursing practice (Harding & Connolly, 2012, p. 50). The focus on remediation in disciplinary orders is based on the idea that nurses’ continued competence and accountability for practice can be ensured through reflection on episodes of professional misconduct or incompetence. Consequently, remediation may not be suitable for nurses who engage in illegal and unethical acts if they cannot or will not accept responsibility for their actions (Collins & Mikos, 2008; Harding & Connolly, 2012). (See Table 1.) In remediation, regulators typically develop an action plan to address the error, and they want to collaborate with the employer in implementing it. The plan may include provisions for close supervision, mentoring, and remediation of specific knowledge and skill deficits (NCSBN, 2012). Framed in a blame-free and nonpunitive context, remedial measures include learning about and reflecting on nursing practice standards. The actual learning and evaluation strategies include competency assessments through direct observation, discussion, certification, peer review, root-cause analysis, simulation, testing, skills validation, role-playing, orientation, and return demonstration (Harding & Connolly, 2012, p. 49). All these approaches can be implemented easily in the workplace when employers’ roles are clearly defined. Clarifications are nonetheless needed to prevent role confusion and allow all to identify the disciplinary order as the authority for oversight of and modifications to a nurse’s practice (Harding & Connolly, 2012, p. 51).
Challenges for Employers Employers maintain sufficient numbers of qualified nurses to deliver safe, competent, effective care. As a result, employers may 20
Journal of Nursing Regulation
be concerned about possible disruption of workflow by discipline monitoring. In particular, employers may not believe they have the time, money, resources, skills, and experience to effectively monitor nurses (Tanga, 2011). Smaller institutions may have insufficient staff to participate in the process (Budden, 2011). In Budden’s survey (2011), representatives from 1,733 hospitals, home health agencies, and nursing homes returned surveys. The response rate of 22% did not differ across facility type. The majority of employers indicated they had not reported any nurses to the board of nursing (BON) for possible disciplinary action in the past year; however, respondents from hospitals were more likely to report that they had contacted the BON than respondents from home health agencies or nursing homes. No further exploration of these differences was done, and small clinics and small health facilities were not included in the study. Although this study deals with a different type of engagement in regulation (i.e., reporting), it suggests that regulators seeking to engage employers in discipline monitoring may need to adjust their approach across practice settings because the oversight, collaboration, and commitment to practice remediation may differ across settings (Kelly, 2010). Employers are also faced with special human-relations challenges when participating in discipline monitoring. Managers are required to orient, train, and support their nurses, yet employers involved in discipline monitoring must report deficiencies to the regulator, and such reports can have serious consequences. Employers may find it challenging to balance their empathy for and encouragement of nurses (Tanga, 2011) with their obligation to monitor and report. Employers may excuse, rationalize, or lament lapses in professionalism because of their relationships with nurses. They may find it challenging to be objective as they balance a nurse’s rights to freedom and privacy against disciplinary orders. Clearly, employers can play an important part in reintegrating disciplined nurses and assisting them in demonstrating the ability to practice competently and safely (Harding & Connolly, 2012). However, the work and stress of monitoring can appear to overshadow the rewards of successfully assisting nurses back into the fold of their workplaces and the profession at large. In their chapter, “Health care under the influence: Substance use disorders in the health professions,” Kunyk and Els (2012) discuss the concept of wearing two hats. Employers who hire nurses with substance use disorders must often be involved in their treatment while monitoring their behavior and performance. Employers participating in discipline monitoring face a similar situation. They have an ethical duty to protect patients (Tanga, 2011), but they may struggle with their loyalties to staff members (Hooper, 2011, p. 18). These similarities in substance use monitoring and discipline monitoring should be noted by regulators. Another challenge is the employers’ lack of familiarity with regulatory processes. Unless employers have first-hand experience with discipline, they typically are unfamiliar with these processes, and their lack of understanding may result in a failure to fulfill reporting obligations (Tanga, 2011). Although remediation is often
at the core of disciplinary orders, employers may not fully grasp this concept and thus may not understand their roles in the process. The findings of a large-scale national survey of U.S. physicians about beliefs and readiness for reporting impaired and incompetent colleagues hint at the main reasons licensed professionals may be averse to monitoring disciplinary orders. Findings suggest that licensed professionals believe the following: ⦁ Others in their organization deal with practice quality and conduct issues. ⦁ Reports often have no consequences. ⦁ Reporting is not their responsibility. ⦁ Reporting can lead to excessive punishment of colleagues. Some respondents to this survey also reported fearing retribution if they reported colleagues (DesRoches et al., 2010). Overall, the survey findings indicate that professional culture regarding discipline and misunderstandings about the principles of self-regulation may pose important barriers to ongoing involvement of employers. A culture of mutual respect between regulators and employers is needed to assist with the discipline-monitoring process. This culture can be created by regulators identifying core values, such as transparency and mutual accountability, and a shared vision with employers regarding responses to discipline processes (Leape et al., 2012, p. 853).
Directions for Regulatory Practice A consideration of the regulator’s goals and the legal and practical issues for employers can help provide direction for regulatory practice. Regulators also should consider the notion of engagement from a theoretical and conceptual point of view as well as proven methods for increasing engagement in their work with employers. Robertson-Smith and Markwick (2009, p. 27) highlighted six keys to engagement from their review of numerous studies in the consultancy academic literature: ⦁ Nature of the work ⦁ Perception of the work as having clear meaning and importance ⦁ Opportunities for growth and training ⦁ Recognition of efforts ⦁ Relationship building ⦁ Autonomy that inspires the confidence of the participants These factors can be incorporated into regulator strategies. Employers need to know that their involvement has a significant impact on the protection of the public and the public’s confidence in self-regulation. Strategies should build on employers’ knowledge as much as possible (O’Neill-Blackwell, 2012). Also, training and opportunities for dialogue and modification to training processes should be made available to employers, and methods should focus on the most common and highest-impact elements of the process (O’Neill-Blackwell, 2012). Recognizing employers’ contributions by providing positive feedback in face-to-face interactions can help build meaningful, lasting relationships. Finally, helping employers
Volume 5/Issue 3 October 2014
TABLE 1
Nurses Who Need Remediation In their exploratory qualitative study, Collins and Mikos (2008) identified groups of nurses who are candidates for remediation. Cases were classified, and themes were identified to provide a preliminary taxonomy of nurses who are disciplined. Although the framework has not been validated in other studies, the classification highlights two notable types of nurses who are targets for remediation: incompetents and rule benders. Incompetents are nurses who do not intentionally violate conduct standards; they simply lack the knowledge, skill, and judgment required to perform nursing skills (Collins & Mikos, 2008, p. 88). Remediation is the obvious choice for these nurses (Collins & Mikos, 2008, p. 88). ⦁⦁ Rule benders are nurses who intentionally violate nursing conduct standards, but generally have good intentions (Collins & Mikos, 2008, p. 88). Rule benders may especially benefit from education about strategies for proactively and directly addressing rather than working around problems (Collins & Mikos, 2008, p. 88). ⦁⦁
Regulators tend to feel that current or future employers should be involved in remediation for incompetents and rule benders (Collins & Mikos, 2008). Because employers have close contact with nurses and ample opportunity to observe nurses’ practice, they can easily share responsibility with the regulator for monitoring, particularly given their knowledge and expertise about acceptable standards of conduct and awareness of contexts that affect professional practice.
adapt recommended guidelines to their own institutional needs will further engage them in the process. Collaborative self-regulation is a process in which partnerships are developed between the regulator and key stakeholders (specifically, employers) to meet the regulator’s responsibility for protection of the public (College of Registered Nurses of British Columbia [CRNBC], 2012; Lahey, 2009, p. 26). Collaborative self-regulation involves equipping employers with the tools to support nurses in providing safe care, entering into a dialogue with employers to enhance communication, developing expectations, and creating shared accountability. Discipline monitoring can be enhanced by providing employers with information and resources; harmonizing standards, expectations, and approaches; and eliminating unnecessary differences among processes and outcomes (CRNBC, 2012; Lahey, 2009, p. 26). Key principles that guide the development of a collaborative self-regulation approach include the following: ⦁ Building on employers’ access to nurses and their awareness of the clinical challenges and vulnerabilities ⦁ Designing solutions that address problems and vulnerabilities and otherwise leave the regulatory process to run its course
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Learning from existing collaborations, such as the alternativeto-discipline monitoring process in which regulators and employers collaborate and monitoring improves ⦁ Avoiding duplication by shifting resources to areas of need and by clarifying goals and expectations. There are numerous specific strategies the regulator can use to help promote employer engagement in discipline monitoring. A public register, such as Nursys®, which provides verification of licensure status at the time of hiring and on a regular basis, promotes the employer’s awareness of current discipline orders (Brooks, 2008). Another approach is developing courses related to specific practice issues. The North Carolina BON designed courses on medication administration, law, and ethics in nursing (Lewallen & McMullan, 2011) and then recruited and trained instructors. Regulators can also publish resources, such as regulatory issues columns in professional and trade publications, or send out their own quarterly newsletters to keep employers abreast of trends related to misconduct and incompetence (Hudspeth, 2008). Similarly, training can be provided in the form of online modules or handbooks. Programs on employers’ roles in and responsibilities for discipline monitoring could be developed. Such initiatives reinforce employers’ understandings that regulators are their partners in promoting safe practice. The literature on employer monitoring of nurses with substance use disorders demonstrates that employers can and do participate in joint monitoring with regulators, and it provides direction for overcoming barriers. In 2011, the National Council of State Boards of Nursing produced the Substance Use Disorder in Nursing manual to provide practical, evidence-based guidelines. In part, the aim was to create benchmarks for standardization of theoretical and practical concepts for use by employers acting as monitors (Darbro, 2011). Specifically, this work identifies the criteria, responsibilities, and expectations for the monitoring process; the methods for monitoring; the consequences for noncompliance; the model policies and procedures; and the annual program evaluation (Darbro, 2011; Monroe, Vandoren, Smith, Cole, & Kenaga, 2011). Horton-Deutsch, McNelis, and O’Haver Day (2011) explored the nurse’s experience in an alternative-todiscipline treatment program, in which three focus groups with 25 participants were conducted. The overall theme that evolved was the need to enhance mutual accountability of the nurse and the employer to improve treatment and recovery. The same approach can be considered and developed with respect to employer monitoring of disciplinary orders. Bettinardi-Angres and Bologeorges (2011) conducted a twophase, mixed-methods study on the barriers to reporting colleagues suffering from substance use disorders and the resources for helping them. Fifty-five nurses were involved in the study, and although it focused on alternatives to discipline and not discipline monitoring, the findings revealed that “[fear of] confrontation is a barrier” (p. 14) when addressing sensitive issues with colleagues. Enhancing ⦁
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knowledge about the regulator’s considerations through workplace protocols and policies may help. Cadiz, Truxillo, and O’Neill (2012) conducted a pretestposttest evaluation of a training program for supervisors. The program was designed for supervisors required to recognize performance problems, intervene effectively, and manage routine issues of nurses enrolled in an alternative-to-discipline program (Cadiz, Truxillo, & O’Neill, 2012). The evaluation found that improving knowledge and competence had a positive impact on learning and training outcomes (Cadiz et al., 2012). In addition, the results suggest that training positively affected the confidence to supervise nurses enrolled in alternative-to-discipline programs and had the potential to create a more supportive workplace by reducing the stigma associated with substance use (Cadiz et al., 2012). This program could serve as a model for the development of a training program on professional misconduct and incompetence.
Conclusion Employers and regulators have different roles in discipline monitoring, but some common interests can be leveraged. Both need to recognize and appreciate the other’s realities and acknowledge the challenges that the other faces. Regulators need to be clear about the need for employer engagement in discipline monitoring, and employers need to accept that their participation is required. Even with the minimal research conducted in this area, there are a number of clear directions for initiatives to address attitude and knowledge barriers and ultimately improve cooperation and enhance employer engagement in discipline monitoring.
References
Bettinardi-Angres, K., & Bologeorges, S. (2011). Addressing chemically dependent colleagues. Journal of Nursing Regulation, 2(2), 10–17. Brooks, J. R. (2008). US legislators drive accountability measures. Canadian Medical Association Journal, 178(6), 671–672. doi:10.1503/ cmaj.080209 Budden, J. (2011). A survey of nurse employers on professional and practice issues affecting nursing. Journal of Nursing Regulation, 1(4), 17–25. Cadiz, D., Truxillo, D., & O’Neill, C. (2012). Evaluation of a training program for nurse supervisors who monitor nurses in an alternative-to-discipline program. Advances in Nursing Science, 35(2), 135–144. College of Registered Nurses of British Columbia. (2012). Underlying philosophies and trends affecting professional regulation. Vancouver, Canada: Author. Collins, S. E., & Mikos, C. A. (2008). Evolving taxonomy of nurse practice act violators. Journal of Nursing Law, 12(2), 85–91. Cornock, M. (2011). Whistleblowing: A legal commentary. Nursing Children and Young People, 23(8), 20–21. Darbro, N. (2011). Model guidelines for alternative programs and discipline monitoring programs. Journal of Nursing Regulation, 2(1), 42–49.
DesRoches, C. M., Rao, S. R., Fromson, J. A., Birnbaum, R. J., Iezzoni, L., Vogeli, C., & Campbell, E. G. (2010). Physicians’ perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. JAMA, 304(2), 187–193. Harding, D., & Connolly, M. W. (2012). Remediation: A necessary function for employers to correct incompetence regarding clinical professional registered nurse practice. JONA’s Healthcare Law, Ethics, & Regulation, 14(2), 48–52. Hooper, S. (2011). Understanding the ethics of whistleblowing by nurses. Journal of the Australasian Rehabilitation Nurses’ Association, 14(3), 18–20. Horton-Deutsch, S., McNelis, A., & O’Haver Day, P. (2011). Enhancing mutual accountability to promote quality, safety, and nurses’ recovery from substance use disorders. Archives of Psychiatric Nursing, 25(6), 445–455. Hudspeth, R. (2008). Failing the duty to report: Disciplinary exposure risk for the chief nursing officer. Nursing Administration Quarterly, 32(4), 349–350. Kelly, T. (2010). How to explore pre-disciplinary resolution of substandard practice cases. Journal of Nursing Regulation, 1(3), 58–61. Kunyk, D., & Els, C. (2012). Health care under the influence: Substance use disorders in the health professions. In Luciano L’Abate (Ed.). Mental illnesses—Evaluation, treatments and implications. Retrieved from www.intechopen.com/books/mental-illnesses-evaluation-treatments-and-implications/health-care-under-the-influence-substance-use-disorders-in-the-health-professions Lahey, W. (2009). Collaborative self- regulation and professional accountability in Nova Scotia’s health care system. Halifax, Nova Scotia: Nova Scotia Health Professions Regulatory Network. Leape, L. L., Shore, M. F., Dienstag, J. L., Mayer, R. J. Edgman- Levitan, S., Meyer, G. S., & Healy, G. B. (2012). Perspective: A culture of respect: Part 2: The nature and causes of disrespectful behaviour by physicians. Academic Medicine, 87, 853–858. Leslie, K. (2012). Recent changes to governance and accountability of the regulated health professionals in Ontario. Nursing Leadership, 25, 70–80. Lewallen, L. P., & McMullan, K. G. (2011). Returning to competence after discipline. JONA’s Healthcare, Law, Ethics, and Regulation, 3(3), 88–91. Monroe, T., Vandoren, M., Smith, L., Cole, J., & Kenaga, H. (2011). Nurses recovering from substance use disorders: A review of policies and position statements. Journal of Nursing Administration, 41(10), 415–421. National Council of State Boards of Nursing. (2012). Regulatory model for discipline [Brochure]. Chicago, IL: National Council of State Boards of Nursing 2012 Annual Meeting. O’Neill-Blackwell, J. (2012). Engage—The trainer’s guide to learning styles. San Francisco, CA: Pfeiffer. Robertson-Smith, G., & Markwick, C. (2009). Employee engagement—A review of current thinking. Brighton, UK: Institute for Employment Studies. Tanga, H. Y. (2011). Nurse drug diversion and nursing leader’s responsibilities: Legal, regulatory, ethical, humanistic, and practical considerations. JONA’s Healthcare Law, Ethics and Regulation, 13(1), 13–16. Zhong, E. H., & Kenward, K. (2009). Factors affecting remediation outcomes. Chicago, IL: National Council of State Boards of Nursing.
Volume 5/Issue 3 October 2014
Farah Ismail, LL.B, MSc.N, RN, is Manager, Prosecutions and Monitoring, Professional Conduct, College of Nurses of Ontario, Toronto, Canada. Sean P. Clarke, PhD, RN, FAAN, is Professor and Associate Dean, Undergraduate Program, William F. Connell School of Nursing, Boston College, Chestnut Hill, Massachusetts.
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