Correctional Nurse . Net

Lorry Schoenly, PhD, RN, CCHP

Confidentiality, HIPAA and the Correctional Nurse

An RN calls the hospital for discharge information on a patient transported back to the prison infirmary from the local hospital after his jaw was wired following an inmate brawl in the exercise yard. The emergency room nurse refused to provide any information stating it would be a violation of HIPAA. She instructs the prison RN  to obtain any information she needs from the patient himself.

An NP is reprimanded for telling a housing officer that one of the inmates is a severe diabetic and needs his evening snack on time.

 

Confidentiality of patient health information has always been a concern for nursing. Valuing patient privacy is an ethical imperative, even in the correctional setting. In recent years the Health Insurance Portability and Accountability Act (HIPAA) has moved healthcare information confidentiality to a legal concern for nurses. In particular, HIPAA regulations ensure that private health information is not released to any third party without the patient’s permission .

Disclosure of medical information may be necessary for the health and safety of both the patient and the large patient community within a security facility. Officers may need to know about medical conditions or disabilities that require special equipment or scheduled appointments. Some medication side effects require additional attention or changes in work duty. Joint surgery may limit movements or abilities that security needs to be aware of. Foruntately HIPAA regulations take into account the need for some information sharing within the correctional setting and have spelled this out is the 45 C.F.R. 164.512 (k) (5) (i) section of the code.

HIPAA Permitted Disclosure to Correctional Institutions

If the correctional institution represents that such protected health information is necessary for:

  • The provision of health care to such individuals
  • The health and safety of such individuals or other inmates
  • The health and safety of the officers or employees of or others at the correctional institution
  • The health and safety of such individuals and officers or other persons responsible for the transporting of inmates or their transfer from one institution, facility, or setting to another
  • Law enforcement on the premises of the correctional institution
  • The administration and maintenance of the safety , security, and good order of the correctional institution

According to this section of HIPAA regulations, an ER nurse can confidently share health information with the receiving nurse in the prison infirmary and a nurse practitioner can alert an officer to a health need of an inmate in his charge.

 

Many in corrections are confused about how to implement HIPAA regulations and the boundaries of patient privacy and confidentiality of medical information. Share your experiences in the comments section.

Photo Credit: © mirabile – Fotolia.com

August 4, 2011 Posted by | Ethical Issues, Legal | , , , , , , , , , , , , , , , , , , | 2 Comments

Top Correctional Health Care News from 2010

This article was originally published by CorrectionsOne.com

Editor’s note: This article is part of the 2010 CorrectionsOne End of the Year Report. Please visit the main page for the end of the year report here.

Several correctional health care news stories top the list as we near the end of the first decade of the 21st century. These stories define the year past and help frame the year ahead. Here are my picks for the top four news stories in correctional health care this year.

#1 – California Prison System at the Bench
California’s Prison system (CDRC), the largest in the nation at over 150,000 inmates, has been embroiled in a legal battle that spans two decades and culminated in a hearing by the Supreme Court this fall. At issue is the flagging healthcare provided by the CDRC. Prior court rulings have focused on reducing the prison population in order to allow for better provision of healthcare based on available resources. But a solution to the California case requires creativity. Balance is needed between the demand for public safety and the necessity for humane treatment of inmates. Every state and county system is struggling to maintain this balance as trends show an increasing healthcare burden in the correctional system.

Why is this important? Although seems like a local issue, the final decision on the constitutionality of the healthcare delivered to this state’s prison population will affect all US correctional systems. Correctional healthcare practices have been court-driven since the landmark 1976 Estelle v. Gamble, when the Supreme Court ruled that lack of medical care constituted cruel and unusual punishment prevented by the 8th Amendment. Since that time, case law has fleshed out the parameters of required medical and mental health care for citizens behind bars.

#2 – It’s All in Your Head
Mental health takes the number two slot this year with increasing reports of deficient mental health care in jails and prisons across the country. Social advocates suggest that, too often, America has decided to criminalize mental conditions rather than treat them. This year, a national report chronicled the distressing news that our largest mental health facilities are now jails. Mental health care is expensive, requiring increased staff support and medications. Seriously mentally ill inmates are a management issue and can be extremely difficult to handle in the general population. Small facilities are particularly vulnerable to these challenges. As the inmate population ages (See news story #3 below) new concerns such as dementia and organic brain disease emerge. Add to this mix the growing awareness of Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) as contributing factors to criminality, and we have the makings of a major news story for this year and the next.

Why is this important? Our society and our corrections systems must grapple with how to handle mental illness as a component of criminal activity. Custody officers need to understand underlying mental illness to effectively manage inmate behavioral problems. Specialized mental hospitals, closed in the 1980’s, may be revitalized to handle nonviolent mentally ill offenders. Mental health courts are advocated in many sectors.

#3 – Another Day Older and Deeper in Debt
It is no secret that the US inmate population is getting older, and inmate population statistics show marked growth in the over-50 segment. The PEW report, published a little over a year ago, documents aged federal prison inmates as a third of total population. Similar numbers exist at state and local facilities. This year, much media attention was placed on the high cost of caring for elder inmates and possible options for alleviating the financial burden or creatively managing their health care. From sea to shining sea, correctional systems are adding assisted living complexes, in-prison oncology units and hospice facilities. Some systems are looking at ways to reduce the burden of end-of-life medical care, such as relaxing medical parole requirements.

Why is this important? Managing aging inmates with increasing chronic conditions and terminal illness will consume a greater portion of resources in coming years. This may mean expanding medical units, building specialized facilities for older inmates, or creatively involving community services to provide needed care.

#4 – Suicides are Down!
After years of effort and attention, suicides in US jails are down and prisons suicides remain at a low. A national study, released this year by the National Center for Institutions and Alternatives (NCIA), documents a near three-fold decrease in jail suicide rate from 20 years prior. This extraordinary improvement is attributed to increased awareness, staff training and enhanced intake assessment of vulnerable detainees. Prison suicide rates have remained stable at 15 per 100,000, only slightly higher than the general population figures (11 per 100,000).
Why is this important? This significant decrease in jail suicides and stability of a low rate of prison suicides indicates that prevention efforts are working. With all the bad news we read over the course of a year, it is a delight to see positive change in a significant health and legal risk. Of course, there is always room for improvement. The jail study findings indicate a shift in suicide attempts from the first 24 hours to the 2-14 day period of confinement. It is recommended that further prevention efforts focus on this time period.

The coming New Year promises to continue to provide significant correctional health care news. We live in most interesting times!

Is there a significant correctional healthcare news story I missed? Add your picks to the comments on this post.

December 27, 2010 Posted by | Legal, Nursing Practice | , , , , , , , , , , , | 1 Comment

Legal Risk and the Correctional Nurse

All nurses need to be concerned for legal risk in their nursing career no matter the specialty. Correctional nurses, however, have some specific areas of concern based on our peculiar setting and patient population. I recently interviewed Valerie Lane, RN, LNC about legal risk for correctional nurses on my radio program – Correctional Nursing Today. She had several good points to share. Download the podcast for her advice.

Because correctional nurses work within a custody environment arranged to maintain security and order rather than for the purpose of delivering healthcare, friction can arise between the goals of custody and the therapeutic goals of nursing care. When conflicts arise, correctional nurses must advocate for necessary care and seek higher authority if barriers to delivering care emerge. Patient advocacy, a prime professional nursing role, is of particular importance in corrections.

In addition, working in a custody environment can lead to a jaded or cynical view of inmate health concerns. Correctional nurses can begin to assume that all inmates are looking for a secondary gain from any health care encounter. This attitude leads to labeling inmates as malingerers or disregarding inmate symptoms.

Situations involving forced medication administration, suicide assessments, substance withdrawal, evaluation for use of force and body cavity searches can also put nurses into legal jeopardy. What should a correctional nurse do to reduce legal risks?

Reducing Legal Risk

  • Know Your Nurse Practice Act: Nurses working in corrections, especially smaller facilities, may be asked to perform functions outside the scope of practice for their license. This can be due to a lack of understanding of healthcare licensure by custody staff or administration making the request. Be sure YOU know what you can and can’t do by virtue of your licensure.
  • Follow Policy and Procedure: Know your role in the various situations that you encounter, especially for the risky situations listed above. For example, if you are called upon to review a medical record to clear an inmate for the pepper spray, would you know what medical conditions to look for?
  • Document Effectively: All important actions and assessments must be documented in the medical record. In the pepper spray example above, the nurse should document the review of record and the release provided. Be aware of all standard forms for various assessments and watches. Initiate forms as appropriate and use them correctly. If a form requires sign-off by another care provider (RN or Physician), make sure that individual is alerted to sign the form.
  • Use the Chain of Command: If you are asked to perform an assessment or intervention beyond your licensure, know the chain of command to follow. Communicate your concerns and response to the request to your immediate supervisor.

By following these recommendations, you can significantly reduce your legal risk in your correctional nursing practice.

Did I miss anything? What other recommendations might you have? Use the comments section to add your advice.

Photo Credit: © James Steidl – Fotolia.com

November 22, 2010 Posted by | Legal, Nursing Practice | , , , , , , , , , , , , , | Leave a Comment

Responding to Inmate Sexual Assault & Prison Rape

Fear by Tetine

The statistics on prison rape are shocking.  According to the 2007 Department of Justice study, 4.5% of all state and federal inmates experienced at least one incident of sexual victimization. That is nearly 1 in 20 inmates. My first reaction to the information was to assume this was inmate on inmate victimization, but this is only part of it. More assault is reported involving facility staff (2.9%) than inmate perpetrators (2.1%).

The Prison Rape Elimination Act (PREA) was passed by the US Congress in 2003 and legislates actions to be taken by corrections personnel to prevent and respond to sexual assaults. PREA also established a Commission to monitor the process of preventing rape in the country’s jails and prisons. How can correctional nurses respond?

 What is Considered Prison Rape?

Any unwanted sexual contact between inmates is considered prison rape. This can include fondling of genitalia or even instilling fear of rape. It does not necessarily have to be full penetration and does not require force to be defined as prison rape.

There is an even higher standard for staff on inmate sexual contact. ANY sexual contact between a staff and inmate – even if consensual – is considered prison rape and can be prosecuted. Be clear for yourself and your work-mates – there is NO permissible level of sexual contact with an inmate. Staff members have been prosecuted and sentenced for writing sexually explicit letters to inmates. A recent example of progression into illegal sexual contact is described in this article.

Who is a Likely Rape Candidate?

As you might expect, studies confirm that the likely inmate sexual assault victim is young, a first time offender, and of small build. In fact, juveniles in adult prisons have a 5 times higher chance of being a rape victim. If you have juveniles in your facility, keep this in mind when you are providing care. Be on the look-out for indications of having been assaulted. Some prisons automatically take protective actions for any juveniles who have received adult sentencing. This is also true for transgender, mentally ill, or developmentally disabled inmates. Be alert when assessing and evaluating any of these categories of inmates.

Impacting Healthcare

Every one of our inmate-patients is at risk for sexual assault or rape and may seek medical treatment for it. We need to be alert to the possibility and ready to respond.  Here are a few clinical situations to consider

  • An inmate arrives in sick call with a vague complaint – she is depressed, nauseous, agitated, or exhibit other traumatic stress responses
  • While working in the segregation unit, you see a generally compliant inmate break rules toward the end of his seg stay, seemingly intent on extending his time
  • A young inmate begins covering himself with feces. After mental health evaluation it is discovered that he uses this as a protective mechanism against repeated rapes by his cell mate

 Action You Can Take

Be familiar with your DOC procedures before you are confronted with a sexual assault situation. That way you will know what mechanisms to put into action. For example, you may need to inform the shift commander. Many places have a sexual assault response team consisting of a mental health provider, law enforcement professional and medical provider.

Document clearly the statements made by the individual.  Allow them to vent without moving into investigative mode and asking questions. Asking questions too early may cause a victim to retreat and close down.

Arrange for a sexual assault evaluation, including a rape kit if the report is within 96 hours of the assault. A specially trained individual should perform this function as forensic evidence will be obtained. In some facilities arrangements must be made to send the inmate-patient out to a hospital emergency room for this procedure.

Arrange frequent mental health follow-up for post traumatic stress responses.

Unfortunately, not all healthcare staff, correctional officers or administrative staff consider sexual assault an important issue. You may encounter conflict in your attempts to advocate for the victim. Be reminded, and remind your corrections colleagues, that being aware of the situation and not responding is both unconstitutional  (Eighth Amendment) and illegal (PREA). In addition, as nurses, we have a moral obligation to act in a rape situation. Sexual assault is not a part of the punishment. We need to respond compassionately as any prudent nurse would in a community situation.

Have you have an experience with a prison rape situation? Share your story in the comments section.

December 8, 2009 Posted by | Ethical Issues, Legal | , , , , , , , , , , , , , , , , , , , , | Leave a Comment

Legal History of Correctional Nursing – Part II

Two terms which guide correctional healthcare emerged from case law surrounding the Estelle v GambleSupreme Court ruling.  The ruling cited a “deliberate indifference to serious medical need” as a breach of the 8th Amendment barring cruel and unusual punishment.  These terms have guided correctional healthcare and the practice of correctional nursing. Once again, I refer heavily to William J. Rold’s excellent and understandable article in the Journal of Correctional Health Care (JCHC).

#1 Deliberately Indifferent

The correctional entity is determined to be deliberately indifferent if it is aware of a serious medical need and purposefully disregards it. Individuals in jails and prisons, unlike the free population, are unable to seek medication or medical treatment at will. They are confined to receive care by the medical staff provided and the times determined by others. Prisoners must seek medical assistance even when over-the-counter remedies are needed or specialized clothing or equipment could prove helpful. The correctional entity may not keep the inmate from obtaining needed care for purposes of saving money or as part of punishment. The 1976 Supreme Court decision, therefore, launched the specialty practice of correctional medicine and correctional nursing as healthcare units developed in most jails and prisons. Many states now have specialized prison hospitals and long-term care facilities to provide necessary acute and on-going care. There are prison-based dialysis units, mobile diagnostics, and emergency response teams to meet the medical needs of the incarcerated.

 #2 Serious Medical Needs

The court did not, however, determine that all desired or even necessary healthcare was required to be provided. A medical need must be determined to be of a serious nature to warrant constitutional protection. Follow on court cases such as Duran v. Anaya, 1986; and Ramos v. Lamm, 1980 helped to define serious medical need as having been ‘diagnoses by a physician as mandating treatment or…is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention”. In addition, the length of time the person is incarcerated can be taken into account when determining a serious medical need. An individual jailed for several days may not be entitled to dentures, while one serving a 20 year sentence may.

The court definitions of ‘deliberate indifference’ and ‘serious medical need’ reverberate through the practice of nursing in corrections. Nursing care within the security parimeter has been determined based on these parameters. Emergency care, ambulatory clinic services, and chronic care disease management practices all stem from the requirement to be attentive to the serious medical needs of incarcerated individuals who are unable to seek out medical treatment independently.

July 4, 2009 Posted by | Legal | , , , , , , , | 2 Comments

Legal History of Correctional Nursing – Part I

Where were you in November, 1976? Maybe not even born yet…but probably not thinking about healthcare in prisons and jails. However, November, 1976 could be deemed the official start of the profession of correctional nursing. This is the date of the landmark Estelle v GambleSupreme Court decision which established heathcare as a constitutional right for US inmates based on the 8th Amendment (Cruel and Unusual Punishment).

According to Mary Muse, RN, MSN, in her recent article on the Evolution of Correctional Nursing Practice, organized correctional healthcare was rare. “Before the 1970s, much inmate health care was provided by other inmates, correctional officers and the occasional physician. The first documentation of correctional nursing may be a 1975 article by Rena Murtha, a director of nursing for a large correctional system. In her account, nurses were “a tool of the warden, a slave of the physician and an unknown to the patient.”

The Estelle v Gamble ruling established three basic rights for inmates because they are not free to seek care on their own.

#1 – The right to access to care

 This is the primary and fundamental right established by the court decision. There must be capacity to deal with medical emergencies and provide needed healthcare, including continuation of medical management established prior to incarceration.

#2 – The right to care that is ordered

As a follow-up to access to care, once treatment is ordered by a health care professional, that care is to be provided without undue delay.

#3 – The right to a professional medical judgement

 The concept of access to care involve the nature and timing of the care such that is is provided by qualified individuals using appropriate equipment, in conducive locations, and for purely medical reasons. Rold, in his excellent article “Thirty Years After Estelle v. Gamble: A Legal Retrospective”citres as example a 1974 case in which an inmate with a severed ear was treated by having the ear removed and the stump stitched. 

The establishment of these three basic healthcare rights for US inmates became the foundation of healthcare delivery and therefore nursing practice in the corrections environment.

June 17, 2009 Posted by | Legal | , , , , , , , , | Leave a Comment