States struggle to settle UAP debate

Factions seek blend of quality, cost, and choice

The state of Georgia recently held a Saturday forum on the use of unlicensed assistive personnel (UAP) attended by nursing professionals, facility and home health agency administrators, disabled advocacy groups, and national experts. Like other states nationwide, Georgia, is investigating the need to rewrite its nurse practice act to strike a more equitable balance between a need for consumer protection and the rights of the disabled and elderly communities to be less institutionalized.

"Most state nurse practice acts have some form of exemption from licensure for gratuitous care by family members, and friends. However, when an unlicensed attendant is hired to perform such activities as straight cathertizations, tracheal suctioning, and ventilator management for a disabled client in the home, the law as it is currently written requires that a licensed nurse perform these activities," notes Shirley A. Camp, RN, JD, executive director of the Georgia Board of Nursing in Atlanta. "In the state of Georgia, the law doesn’t allow for the delegation of professional nursing activities to [UAPs]. One of the recommended statutory changes would allow for RNs to delegate these activities, however, it would still require supervision by a RN. This is both an economic and ‘approach’ issue. The supervision requirement requires additional fiscal resources for the disabled client, and encourages an environment based on a medical model."

The disabled community objects to the delegation requirement, adds Camp. "The disabled community wishes to direct the level of provider being utilized and instruct them in the care to be provided using RNs in a consultive role as needed and determined by the disabled individual," says Camp.

More than 25 state legislatures nationwide have passed or seriously debated statutory changes in their nurse practice acts that address that necessary balance between public safety and public access. "In New York, a bill passed the legislature in 1996, but was later vetoed by the governor, that allowed for the prosecution of unlicensed personnel illegally practicing nursing. It’s the first time we’ve seen that approach, but it illustrates the level of concern about public safety," says Susan Whittaker, MSN, RN, associate director of state government relations for the American Nursing Association in Washington, DC.

Defining the issues

Other states are taking different approaches. Whittaker explains that most of the debates center around the following questions:

• Should there be an exam that tests the knowledge and competency of UAPs?

• Should UAPs be required to have standardized training?

• Should UAPs be required to meet clear standards?

• If there is a testing or education requirement, which agency should oversee it? (Should it be the state board of nursing? Should it be the board of health?)

Another issue under study by the states is the proper staffing ratio in hospitals and rehabilitation facilities. "There was recently a proposition on the California ballot about staffing mix in hospitals. Another way to handle that issue is to require institutions to make nurse staffing and patient outcomes data available to the public as well as protect nurses who speak out about patient care issues. ANA worked with U.S. Rep. Maurice Hinchey (D-NY) on the Patient Safety Act (H.R. 3355) that included those provisions. Many states have also introduced legislation requiring that nursing staff wear name tags that identify their training," notes Whittaker, explaining that there is a trend in acute care and rehabilitation facilities for nursing staff to wear generic name tags, so that patients are unclear whether they are being cared for by an RN, LPN, or UAP. (See story, below, for ANA consumer awareness campaign on this issue.)

"There is definitely a need and a role for unlicensed aides in the health care delivery system. A board of nursing cannot become a legal barrier to consumers attempting to obtain cost-effective health care. However, it is also imperative that the consumer have an understanding of the qualifications of the individual providing their health care," adds Camp.

Case managers may want to closely scrutinize how facilities they refer to handle staffing ratio and staff identification issues. "Unlicensed personnel run nursing homes. Nursing homes, and subacute units within them like the one I work on, don’t exist without aides," says Cathy Tracey, RN, MS, CRRN, subacute program director at Vencor/Greenbriar Terrace, in Nashua, NH. "Our staff ratio right now is about 40% RNs and LPNs and 60% patient care assistants. But we do wear name tags."

In fact, at Tracey’s facility the nursing staff also has a color-coded dress code that helps patients more easily identify the training of the nursing personnel who care for them. "We have three levels of unlicensed personnel. They must take training courses offered by the facility in order to move up to the next level. Each level wears a different color golf shirt to signify their training level. Nurses wear all white," she explains.

The ANA has launched a study on the effect of UAPs on quality of care and clinical outcomes in acute care facilities. "We’ve identified a set of nursing quality indicators for the acute care setting, such as infection rates, patient falls, and patient satisfaction with pain management. Then we looked for states with data sets so that we could make the link between staffing ratios and outcomes," says Whittaker. ANA found the necessary data sets for three states: California, Massachusetts, and New York. "The results we’re finding are ironic. The use of more unlicensed aides was an economic move, yet we’re showing increased readmission rates in facilities with a higher percentage of aides. Instead of saving money, the costs are higher in the long run," she notes. ANA is currently looking for similar quality indicators and data sets to study the effect of UAPs on home health outcomes, Whittaker adds.

Staffing ratios in acute care and rehabilitation facilities are definitely cause for concern. Yet, one of the biggest fights is over the rights of the disabled and elderly to privately hire personal assistants. The one item of legislation disabled advocacy groups in Georgia are pushing hardest to pass centers on the definition of health-related tasks that can be performed by UAPs, says Pat Puckett, executive director of the Statewide Independent Living Council of Georgia in Atlanta. (See p. 10, for more resources on disabled advocacy groups.) Under Georgia’s proposed Long-Term Care Choice Act, Puckett and others in the disabled community hope to have the following language adopted:

"Health-related tasks. Tasks to preserve and/or improve health that can safely be performed by a qualified unlicensed person or assigned to the consumer and his/her agent or delegated to a qualified unlicensed person by a health professional. Such tasks include but are not limited to assistance with medication, ventilator care, and tube feeding."

"I have a friend named Donald who is vent dependent and uses unlicensed people he provides training for in vent care. Both he and his unlicensed aides are doing fine," notes Puckett, who brought her friend Donald with her to the state of Georgia’s recent forum on UAPs. "The problem is that too much of the legislation surrounding long term care comes from a very medical model. It’s written with the assumption that the consumer is incompetent," she adds. (See story, p. 11, for results of a national consumer poll about the use of UAPs.)

The choice of families and disabled individuals to hire and use UAPs to deliver personal care is primarily an economic issue. "If you use an aide provided through an agency with RN supervision your costs immediately increase 50%. After all, the agency has to pay taxes for its employees, and most families don’t pay taxes for the aides they hire privately," notes Rona Bartlestone, MSW, LCSW, CMC, president and chief executive officer of Rona Bartlestone Associates, a long-term care company in Ft. Lauderdale, FL. "Now, we’ve had situations where the Internal Revenue Service is going after families who hire unlicensed aides without paying social security taxes for them. It provides disincentives for people to take care of their own families. What we need are incentives for families to continue to provide care rather than taking actions, or passing legislation which forces people into poverty," she adds.

Protection or barrier?

Legislation such as state nurse practice acts also can create artificial barriers to care choices, notes Bartlestone. "A nurse can train a family member to give an injection, but the family can’t train an aide to perform the same task. Yet, it’s true that the elderly and chronically ill or disabled are vulnerable. Patient safety is a real concern. That’s what makes this issue so difficult," she says.

As a workers’ compensation case manager for a large payer, Myra McCowan, BSN, regional rehabilitation manager for USF&G Insurance in Atlanta, has concerns about the use of UAPs in acute care facilities and in the home setting. "We’ve seen people in the hospital with serious urinary tract infections because of inadequate care provided by UAPs. I’d much rather pay more for qualified care from a licensed nurse, than risk high cost complications down the road. Compromising standards to save money doesn’t work," she argues. (See p. 9, for results of a national nursing survey about UAP use and care quality.)

"We’ve also seen complications in the home setting. It’s true that anyone can be trained to perform certain health care tasks. The problem is that most unlicensed aides have no understanding of pathology. They don’t recognize signs and symptoms of trouble, and we’ve had some expensive readmissions," says McCowan.

Case managers may even face personal liability if a patient on their caseload has an adverse outcome under the care of an UAP. "You must understand the nurse practice act in your state. If you arrange for an unlicensed aide to perform a task clearly requiring RN care under the nurse practice act of your state and your patient suffers an injury, you could be held accountable. Working with a licensed agency is by far a much safer situation for issues of case manager liability and quality patient care," she cautions.

However, if an injured worker on her caseload no longer requires skilled nursing care and wants to privately hire an UAP, McCowan establishes some guidelines to insure the situation is as safe as possible. "First, I check with the physician. If necessary, I get a written statement from the physician stating that the client needs a certain level of care," she says.

If it seems clear that a client can safely receive care from a properly trained UAP, McCowan takes the following steps:

• Help the client conduct an extensive background check and verify work experience of all UAP applicants. "I would rather spend the money to do a background check through a national company, such as Equifax, than risk allowing someone who is less than credible to care for a client," McCowan says.

• Bring the UAP into the rehabilitation facility to make sure they have the skills necessary to perform the tasks needed by the individual client. "I’m willing to pay for the aide to go into the rehabilitation facility and have a qualified clinician check them off on basic skills. We routinely bring family members in the rehab facility to teach them necessary patient care skills, and to me this is no different. I believe in paying extra to get what you need, especially if it saves medical costs down the road caused by incompetent care," says McCowan. "By asking the rehabilitation facility to make that competency judgment, the decision also becomes more objective," she adds.

Poor hiring choices recognized

Even disabled advocates who push for freedom of choice in hiring UAPs recognize that some individuals make poor decisions when selecting aides. "I have had people assure me they understood all about their care, but they didn’t, and I failed to question them thoroughly about it," says Puckett. "The process of adjusting to a disability is traumatic. The acquisition of information about your new body takes time. I think consultants such as rehabilitation nurses are very important in teaching and support roles, but I do believe that unlicensed aides can adequately perform most daily health tasks needed by the disabled community," she adds.

Loved ones are best case managers

Puckett argues that family members make excellent case managers and generally do a good job in hiring UAPs. "The most effective quality control tool you can have is somebody who loves you. That’s the person who’s going to be most willing to make sure your care is impeccable and that everybody who touches you knows what they are doing," she argues. (For results of a national study on family caregivers, see story, p. 7.)

[Editor’s note: Both the ANA and the American Rehabilitation Nurses (ARN) in Glenview, IL, have issued policy statements on the use of UAPs. To receive more information, contact the associations directly at: ANA, 600 Maryland Ave., SW, Suite 100 W, Washington, DC 20024-2571. Telephone: (202) 651-7000; or, ARN, 4700 W. Lake Ave, Glenview, IL 60025-1485. Telephone: (800) 229-7530. To learn more about the nurse practice act in your state, contact your state board of nursing.]