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THE NATIONAL INSTITUTE ON CONSUMER-DIRECTED 


LONG-TERM SERVICES 


AUTONOMY OR ABANDONMENT: 
CHANGING PERSPECTIVES ON DELEGATION 


DONNA L. WAGNER, PH.D. 
PAMELA NADASH, B. PHIL. 
CHARLES SABATINO, J.D. 

THE NATIONAL COUNCIL ON THE AGING 


July 1997 


CONFERENCE PLANNING COMMITTEE 

CONVENERS: The National Institute on Consumer-Directed Long-Term Services, 
American Association of Retired Persons (AARP), 
Assistant Secretary of Planning and Evaluation (ASPE)/HHS, and 
Administration on Aging (AoA)/HHS. 


COMMITTEE MEMBERS 

 

Deborah Arrindell Carolyn Hutcherson

 

National Association for Home Care National Council of State Boards of Nursing

 

Washington, DC Chicago, IL 

Kathleen Bond Simi Litvak 
ASPE/HHS World Institute on Disability 
Washington, DC Oakland, CA 

Floyd Brown Eloise Monzillo 
ASPE/HHS National League for Nursing 
Washington, DC New York, NY 

Pam Doty Faith Mullen 
ASPE/HHS AARP 
Washington, DC Washington, DC 

Karyl Eckels Pamela Nadash 
World Institute on Disability NCOA 
Oakland, CA Washington, DC 

Annabelle Friedman Charles Sabatino 
NCOA ABA Commission on Legal Problems 
Washington, DC of the Elderly 

Washington, DC 
Rita Munley Gallagher 
American Nurses Association Donna Wagner 
Washington, DC NCOA 

Washington, DC 
Marsha Goodwin 

 

VA Health Administration Susan Whittaker 

 

Washington, DC American Nurses Association 
Washington, DC 


This document was supported, in part, by grant No. 90-AP-2061, from the 
Administration on Aging and the Office of the Assistant Secretary for 
Planning and Evaluation, Department of Health and Human Services. 
Grantees undertaking projects under government sponsorship are encouraged 
to express freely their findings and conclusions. Points of view or opinions 
do not, therefore, necessarily represent official Administration on Aging 
policy. Additional financial support was provided by the American 
Association of Retired Persons, American Nurses Association, and National 
Association for Home Care. 

Copyright © The National Council on the Aging, Inc., 1997. Printed in the U.S.A. 
Permission to make single copies is granted so long as the material is attributed to 
the Institute. To ask for more copies of the paper, please contact the Institute by 
writing to the National Institute on Consumer-Directed Long-Term Services, 
NCOA, 409 Third Street SW, Washington, DC 20024; calling 202/479-6972; or 
sending a fax via 202/479-0735. 

THE NATIONAL INSTITUTE ON CONSUMER-DIRECTED LONG-TERM SERVICES 
was established in 1995 to foster increased opportunities for consumer choice and 
direction in systems and services for adults with disabilities. Funded by the 
Administration on Aging (AoA) and the Assistant Secretary for Planning and 
Evaluation (ASPE), the Institute is also supported by The Robert Wood Johnson 
Foundation. It is housed at The National Council on the Aging (NCOA) and is a 
partnership between NCOA and the World Institute on Disability. 

The planning committee would like to thank the National Association 
for Home Care for its assistance in printing and distributing this 
document. 


AUTONOMY OR ABANDONMENT: 
CHANGING PERSPECTIVES ON DELEGATION 


TABLE OF CONTENTS 


I. Introduction 1 

A. An Overview of the Issues: Factors Affecting Delegation 1 

B. Review of Legal and Regulatory Issues 12 

II. Highlights of a National Conference 23 

A. Overview of Symposium Themes 25 

B. Approaches to Delegation in Selected States 32 
Oregon 32 
Texas 37 
New York 41 
Washington 46 

C. Comparison of Nurse Delegation Provisions in Four States 50 

D. Consensus Topics and Recommendations of Conference Participants 53 

III. Survey of State Boards of Nursing 57 

IV. National Stakeholder Association Positions on Delegation 60 

A. Americans with Disabilities Attendant Programs Today (ADAPT) 60 

B. The American Nurses Association (ANA) 65 

C. Developmental Disabilities Nurses Association 70 

D. The National Association for Home Care 73 

V. Informational Resources 80 

VI. Appendix: Question and Answer Session: 
Issues raised by the state presentations 82 





1. INTRODUCTION 
A. An Overview of the Issues: Factors Affecting Delegation 
The "Autonomy or Abandonment: Changing Perspectives on Delegation" symposium 
was convened on October 24 and 25, 1996, in Alexandria, Virginia. The aim was to explore 
issues in and approaches to the delegation of "health maintenance" activities and to facilitate the 
delivery of home and community-based long-term services to adults of all ages with disabilities. 
To this end, the symposium brought together nurses, homecare providers, state-level 
policymakers, and consumers of long-term services. Participants discussed approaches taken by 
different states, looked at the implications of changes in services delivery systems for the future, 
and explored questions of cost, legal issues, barriers to service, and quality, as interpreted from 
the perspectives of the participating groups. 
This document describes the highlights of the symposium and the findings of a state


survey on delegation undertaken for the symposium. It also gives an overview of the legal and 
regulatory issues involved in delegation and provides a backdrop of the factors influencing our 
approach to delegation in the country today. It is the hope of the staff of the National Institute 
on Consumer-Directed Long-Term Services and the Planning Committee for the symposium -representatives 
of stakeholder groups -- that the reader finds this document a valuable resource 

for their own exploration of the increasingly important issues surrounding delegation and our 

common concern with enhancing the safety, independence, and autonomy of persons with long-term service needs. 

What is Delegation? 

Delegation is the transfer of authority from a licensed, professional health care provider 
to an individual not licensed to perform the delegated tasks, within a specified situation. 
Although delegation is not restricted to home and community-based service settings and, indeed, 
often takes place in hospital and other acute care settings, the symposium focused only on home 
and community-based services, including group homes and foster homes. Nurses are the 

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primary professional group involved in this form of delegation, because the types of services that 
are delegated in home and community-based settings tend to be those services that nurses are 
licensed to perform, such as medication administration, skin care, bowel programs, and, 
arguably, even ventilator care. Consequently, the nursing profession has taken a leadership role 
in defining delegation and promulgating policies, procedures, and regulations. 

There is considerable disagreement about which services are suitable for delegation and 
whether these services can in fact be performed safely by unlicensed personnel. It is therefore 
difficult to come up with a neutral term for the class of services that are the subject of 
discussion. For the purposes of this document, we refer to these services as "health maintenance 
activities." 

Currently, regulations relating to the performance of health maintenance activities by 
unlicensed personnel vary from state to state. The key legislation determining a state's policy is 
its Nurse Practice Act, which defines nursing's scope of practice. Regulations are promulgated 
by state boards of nursing, which are also responsible for enforcement of the Act -- boards can 
revoke a nurse's license, for example, in addition to making initial licensure decisions, renewing 
licenses, and taking other disciplinary actions when appropriate. The delegation of nursing 
activities to unlicensed personnel such as home care aides or personal assistants is allowable 
under some states' Acts, so long as the delegation has followed the state's guidelines and 
procedures. Often, nurses remain responsible and liable for the safe performance of the 
delegated task. Many states also exempt family members from Acts, making it illegal for 
anyone to perform health maintenance activities except for those who fall into the state's 
definition of "family" or to whom tasks have been legally delegated. 

Two Prevailing Approaches to the Performance of Health Maintenance Tasks 

There are, then, two prevailing approaches to allowing persons other than nurses to 
perform health maintenance tasks -- a legally defined approach to delegation and/or an approach 
that includes exemptions for either a category of individual or program. Within each of these 
approaches, considerable variation exists, depending on how state governments have chosen to 
articulate the delegation standards that apply within their state. In a legal approach to 

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delegation, the procedures for how authority is transferred from the nurse to the unlicensed 
service provider are carefully specified -- who, where, when, and how are written into the 
statutes and other rules authorizing delegation. These procedures can be either narrow in scope 
or broad and lacking in specificity. The second is an "exemption" approach in which certain 
individuals, primarily family members, or specific programs are exempt from the regulations 
governing delegation. These two approaches are not necessarily mutually exclusive within a 
state, but are important to consider when policy is developed around delegation because of their 
implications. 

The primary difference between specific delegation and "exemption" approaches is in 
where the authority and responsibility associated with each lie. In an "exemption" approach, it 
is the implicit right of the person needing service to manage the provision of this service as he or 
she prefer as long as the provider of service falls within the "exempt" category. Nurses are not 
held responsible for the provision of the service, but may continue to play an important role in 
educating the provider and the consumer of the service as well as, in some instances, monitoring 
the service over time. In the legally specified delegation approach, the responsibility of 
authorizing delegation, ensuring the quality of care, and monitoring its provision remains with 
the nurse. 

The legal and regulatory issues surrounding delegation are discussed in the following 
section of this report. Examples of states that rely on the two approaches are also provided in 
Section II.B. 

Demographic Factors Influencing Changes in Delegation 

Currently, 12.7 million Americans have long-term care needs, 10.2 million of whom live 
in the community. All in all, there are 40.1 million Americans with activity limitations.' Many 
of these people require some ongoing medical services in their home. With an increasing 
population of older persons, particularly those over the age of 85, these figures are likely to grow 
in the future. 

Adler, M. ASPE Research Notes: Focus on Disability/Long-Term Care. Washington, DC: ASPE. 
February 1995. 

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Although such demographic shifts are only one of the factors that have necessitated the 
recent emphasis on more cost-effective approaches to providing medical services, they ar 
among the most important. Some of the demographic factors influencing changes in the way 
services are provided include: 

• Increasing numbers of older Americans -- a group most likely to require some 
health services on a long-term basis as well as an intermittent basis; 
• The increased likelihood that people with disabilities will have a "normal" life 
expectancy; and 
• Increases in violence resulting in larger numbers of persons with disabilities.2 
Today there are more than 34 million older adults. By 2010, we expect that there will be 
40 million older Americans. 3 Currently, the likelihood of needing long-term care is highest 
among older persons, particularly those over the age of 85 -- a rapidly growing group. And most 
of these services are community-based -- 80 percent of all long-term care services provided to 
this group are provided in their homes, not institutions. Although there has been a decline in the 
projected rate of disability among older persons, 4 their sheer numbers in the future will 
mandate new and different approaches to the provision of long-term services in cost-effective 
ways. 

While the incidence of disability among older persons may be lessening, it is increasing 
among younger Americans. This is due to two trends -- the increasing longevity of those born 
with disabilities and the increasing numbers of young persons surviving disabling conditions that 
result from illness, accidents, and crime. Today more than 40 percent of those needing long-
term care services are working age (18-64 years of age); this percentage is likely to increase in 

Portions of this discussion are based upon a key note address of Linda Redford, RN, Ph.D., Univ. 
of Kansas Medical Center, Kansas City, KS. 

U.S. Bureau of the Census. Current Population Reports, Special Studies, 65+ in the United States. 
Washington, DC: U.S. Government Printing Office. 1996. 

Manton, K., Corder, L., Stallard, E., NIH, March 17, 1997. 

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the future. 

More of this growing population of people with long-term service needs can be 
supported in the home, both because of advances in technologies that permit enhanced 
independence opportunities and the development of a home and community-based service 
system that reduces reliance upon institutionally based services. The pressure remains, however, 
to deliver these services as inexpensively as possible. At the same time, a shift away from the 
"medical model" of delivering these long-term services has been inspired not only by the limited 
finances and labor pool available, but by the political forces of the consumers of long-term 
services. 

Political Factors Influencing Delegation 

The Independent Living Movement, begun by persons with disabilities in the 1970s, was 
effective in altering many of the national policies and service options for persons with 
disabilities and, ultimately, in passing the Americans with Disabilities Act (1990). The 
underlying philosophical change effected by the Independent Living Movement was to change 

the status of a disabled person from being a patient to being a consumer.The movement 

rejected the medical model approach to care which, independent living advocates argue, 

overemphasizes the importance of medical, rather than social or economic issues in the lives of 

those with disabilities or chronic conditions and, indeed, forces people with disabilities to 

assume inappropriately the "sick role," a role in which "patients" are reliant on medical expertise 

for resolving all aspects of their lives. 6 Instead, the movement demanded autonomy and 

independence as well as control over services -- who provides services, where the services are 

provided, and how they are provided. In particular, health maintenance services, delivered on a 

daily, weekly, or other continuous basis, are viewed as ADLs for people with disabilities and are 

therefore amenable to consumer supervision and even consumer training of personal assistants to 

Simon-Rusinowitz, L., & Hofland, B. "Adopting a Disability Approach to Home Care Services for 
Older Adults," The Gerontologist, 33 (2):159-67, 1993. 

6 For a fuller description of "the medical model," see DeJong, Gerben. "Defining and implementing 
the independent living concept" (Chapter 1 in Crewe, Nancy M., Irving K. Zola, and Associates. Independent 
living for physically disabled people). San Francisco, CA: Jossey-Bass, pp.15-18. 1983. 

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perform these tasks. Thus the movement resulted in increasing demands for changes in 
delegation approaches and modifications to policies affecting delegation. 

At the same time, anxiety about the safety of home and community-based services has 
increased as their availability has increased. Much of this anxiety is related to the quality and 
accountability of personnel delivering services, particularly health maintenance services, in the 
community. Continued access to nursing expertise is seen as an important part of ensuring 
quality in home and community-based services. Consumers and program administrators alike 
are concerned about potential abuses. 

More recently, shifts in the financing and organization of health care systems and long-
term care providers have become a force in the practice and policies associated with delegation 
as well as the attitudes of those directly involved in delegation activities. The two most 
important shifts have been the rise in managed care and the development of alternative service 
models for older adults. 
Managed care, viewed by some policymakers as an important part of the solution to the 
problem of increasing health costs, has begun to make changes in consumers' access to health 
care and the ways in which care is provided. In particular, managed care organizations have 
begun to redesign staffing patterns for the most highly skilled, credentialed professionals in 
order to cut costs. For example, managed care organizations are increasingly using Physician 
Assistants and Nurse Practitioners to provide primary care services which previously were 
provided by physicians. More commonly, tasks previously assigned to RNs are being shifted to 
LPNs and nurse aides, particularly in acute care settings. Thus, delegation is seen as an 
important mechanism for cost savings -- unsurprisingly, the nursing profession is deeply 
concerned about the implications for service quality. 

Delegation of nursing tasks to less skilled workers is also a strategy employed by 
Congregate Living and Assisted Living Facilities, which provide important community-based 
independent living opportunities for millions of older and disabled Americans. These and other 
similar models of residential programs were developed as alternatives to the medical models of 
care found in nursing homes and as a supportive environment for those who otherwise might be 
dependent upon family or friends for ongoing assistance and care. But now, with the average 

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age of residents in the 80s, service needs have increased considerably. Medication management 
and nursing care are now integral components of the support received by residents of these 
facilities -- and the separation of medical from non-medical models is often not a simple matter. 
Meanwhile, the philosophical underpinnings of the models and available resources preclude the 
use of highly skilled health care professionals as core staff on-site to deliver these services. 
Delegation is a strategy that arguably allows these facilities to meet the needs of residents while 
maintaining a less "institutional" environment. 

Perspectives on Delegation 

Physicians can delegate tasks to others (such as nurses), as can other health care 
professionals. However, it is most often nursing tasks that are deemed suitable for delegation in 
home and community-based service settings. Consequently, the nursing profession has been the 
most active in the codification and articulation of delegation. Their leadership role in delegation 
has set the standard and provided the balance between autonomy of the patient and quality of the 
health care needed to ensure positive health outcomes. 

Nurse delegation has been practiced since the 1940s, but has only recently been codified 
in statutes. The State Boards of Nursing have the responsibility for monitoring and dealing with 
violations of the Nurse Practice Acts -- the regulatory authority over delegation activities -- by 
both licensed and unlicensed persons. When there is a violation of the Act resulting in harm, 
the employer, the nurse, and the person providing the service can be legally liable if they are 
found to be negligent in carrying out their duties (see Section I.B for a full discussion of legal 
and regulatory issues). Regulations and protocols are helpful in clarifying what these duties are; 
however, although many states that have modified their regulations to clarify the rights and 
responsibilities of nurses, many states have guidelines that are vague or incomplete. 

The National Council of State Boards of Nursing's model nurse practice act states that 
"...the registered nurse decides what to delegate and to whom, is responsible for communication 
of the delegation...and the evaluation of the delegation." Because nurses are ultimately 
responsible for services and outcomes and are concerned about the quality of care, they must 
carefully and thoroughly consider the many factors affecting delegation. Nurses consider the 

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competency of individuals in performing tasks, their ability to apply knowledge beyond the 
task,and their motivation. Consumers or their surrogates must be able to make decisions, have 
knowledge and understanding of their service needs, have the ability and desire to direct 
services, and have the ability to monitor and evaluate services. 

Nurses typically review the specific task to be delegated, determine when and if it should 
be delegated, and assess how easily accessible help and consultation are for the consumer. 
Nurses also must consider the context in which services are being delivered -- whether a 
disruptive family environment, for example, is likely to mean that delegated services will not be 
delivered with appropriate care. Some states specify which tasks can and cannot be delegated; 
others are silent on specific tasks and merely empower the nurse by allowing them to delegate 
"nursing tasks." A few states regulate delegation differently in different service settings.' 

The basic issue for nurses in delegation is quality of care -- an issue which is present in 
settings such as hospitals and nursing homes as well as in the consumer's own home. If a 
situation requires the education and judgment of a nurse on an ongoing basis, then nurses have 
the responsibility to withhold the delegation authority in order to ensure the quality of the 
needed service and the health outcomes associated with the service, even if they are permitted to 
delegate by the prevailing Nurse Practice Act. However, nursing judgment is not always the 
determining factor in who provides what services, as is the case with individuals or programs 
that are explicitly exempt from Practice Act provisions. As changes occur in the health care 
system, the nurse's role in delegation may also change -- thus increasing the concerns already in 
place about quality care and positive health outcomes. 

Some consumers, on the other hand, view the process of delegation as an impediment to 
independence and autonomy. If a service is required on a daily basis, for example, and this 
service falls under the definition of a "nursing task," there can be a conflict between the needs 
and wishes of consumers and the legal responsibility of a nurse. To consumers, such services 
are basic activities of daily living rather than tasks that require a highly skilled professional. The 
idea of "asking permission" to manage daily activities can be repugnant to consumers and 

Rosalie A. Kane, Colleen O'Connor & Mary Olsen Baker, Delegation of Nursing Activities; Implications 
for Patterns of Lone-Term Care (AARP, Public Policy Institute, Report #9515, November 1995) 

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offensive to their sense of independence and autonomy. 

Many consumers feel they are perfectly competent to oversee unlicensed personnel 
performing health maintenance tasks on their behalf. They cannot understand why nurse 
involvement is necessary for tasks which people who do not have disabilities perform for 
themselves all the time, such as administering oral medications or insulin injections. Consumers 
may also object to the authority nurses exert over individuals performing delegated tasks -- they 
may feel they know as much, if not more, about their condition as the unlicensed person to 
whom tasks are delegated; in their view, the person performing the task should be answerable to 
them, not to a nurse. After all, consumers argue, it's their health that will suffer if the 
unlicensed individual performs a task poorly. Reimbursement for services through 
governmental or other third-party sources can limit the authority of consumers, however, and 
therefore reduce the authority and autonomy of a consumer. 

For some consumers, the exemption approach has been welcomed as a solution to the 
desire for both consumer control and access to needed services. The exemption approach allows 
consumers to receive services from family members or personal assistants (although the standing 
of personal assistants is less clear and is discussed in the following section). Under this 
approach, nurses have an important role to play in educating and acting as consultants -- thereby 
empowering consumers to exercise maximum control over their lives. 

For those consumers for whom exemption does not apply because of their state's 
legislation, the delegation process can be difficult and psychologically damaging to their sense 
of autonomy. In states that restrict exemptions to family members, consumers who need to or 
prefer to receive needed services from friends or paid attendants can also find themselves unable 
to use the exemption approach. The balance between independence and quality of care is not 
always easy to achieve and poses a challenge for both consumers and nurses. 

Summary and Organization of the Document 

For the professionals, policymakers, and advocates who participated in the planning of 
the symposium, it was clear from the beginning of the planning process that we all shared the 
same goal, even though our perspectives on delegation may differ: To ensure that persons with 

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long-term service needs have access to the highest quality care available in a fashion that 
enhances their quality of life, independence, and autonomy. The symposium was designed to 
explore divergent as well as consistent perspectives among the key stakeholders in delegation. 
Several issues emerged which frustrated all of the participants and exacerbated the divergence in 
opinions and approaches to delegation, including: 

The effect of fragmented funding streams, with their different requirements and 
standards, on the availability and nature of services; 
• The pressure to seek lower cost care options for a growing population needing 
access to services; 
• The difficulty of monitoring and evaluating health outcomes over time when 
services are located in individual homes; 
• The legal ramifications for all parties involved in delegation, including 
professionals, service providers, and payers; 
Negotiation of "acceptable risks" in a system which can penalize one party in the 
negotiation and not another; 
• Concerns about the accountability of unlicensed personnel performing health 
maintenance tasks; 
• The need for more education of consumers, nursing professionals, and 
policy makers about delegation issues. 

This volume is organized to provide information not only on the symposium itself, but 
on the overall topic of delegation. An overview of legal and regulatory issues involved in 
delegation is included, as are the findings of a study undertaken of states' approaches to 
delegation. The highlights of the symposium are provided, along with an overview of topics 
raised, recommendations resulting from the symposium, and presentations from four states with 
different legislative approaches to the issue (with an accompanying comparative chart). And, 
finally, we include the formal statements and positions of national associations on delegation and 
a list of informational resources. An appendix of the edited remarks of symposium participants 

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provides insight into the flavor of the symposium, and gives a taste of some of the wider issues 
associated with the topic. 

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Review of Legal and Regulatory Issues 
The most material legal issues relating to the delegation of "nursing" tasks in the context 
of personal assistance service programs may be described in two broad categories -- regulatory 
issues and personal liability issues: 

Regulatory Issues: 

• What is the legal definition of nursing and, conversely, its exemptions? This 
is the threshold issue concerning the applicability or reach of nurse practice acts. 
• What regulatory standards apply to delegation under state nurse practice 
acts? These include operational issues, such as the question of how delegation 
must be implemented under the act or regulations. 
Personal Injury Liability Issues: 

• What is the risk of liability of the nurse/delegator for injury to a client? The 
answer determines in large part how viable nurse delegation is as a practice 
option. 
Regulatory Issues 

Regulatory issues are essentially policy issues -- that is, the law in the form of regulation 
flows from policy decisions that legislatures and executive agencies adopt. Thus, state nurse 
practice acts and regulations reflect policy decisions aimed at the safety and protection of the 
public. They were not originally conceived with consumer-direction and delegation in mind, 
although most state nurse practice acts at least make reference to delegation. Violation of 
regulatory standards primarily affects the licensure of professional nurses, although regulatory 
standards also help define standards of care that apply in personal injury and malpractice 
litigation (discussed further under Personal Injury Liability). 

Two regulatory questions are central to nurse delegation. 

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What is the legal definition of nursing and, conversely, its exemptions? 
The first legal puzzle in connection with nurse delegation is the reach of nurse practice 
acts in the first place. The answer is often uncertain because registered or professional 
"nursing"services are typically defined quite broadly -- and vaguely -- by state nurse practice 
acts 8 . Consider, for example, the following two definitions of the practice of nursing. The first 
is from the Michigan nurse practice act and is quite brief: 

Michigan 

The "practice of nursing" — the systematic application of 
substantial specialized knowledge and skill, derived from the 
biological, physical, and behavioral sciences, to the care, 
treatment, counsel, and health teaching of individuals who are 
experiencing changes in the normal health processes or who 
require assistance in the maintenance of health and the prevention 
or management of illness, injury, or disability.9 

The second is from the California nurse practice act and includes greater detail by way of 
examples: 

California 

The "practice of registered nursing" -- those functions, including 
basic health care, which help people cope with difficulties in daily 
living which are associated with their actual or potential health or 
illness problems or the treatment thereof which require a 
substantial amount of scientific knowledge or technical skill, and 
includes all of the following: 

a) Direct and indirect patient care services that insure the 
safety, comfort, personal hygiene, and protection of patients; and 
the performance of disease prevention and restorative measures. 

b) Direct and indirect patient care services, including, but 
not limited to, the administration of medications and therapeutic 
agents, necessary to implement a treatment, disease prevention, or 

C) Most states have several types of nurse licensure. All states license registered nurses (RNs) and licensed 
practical or licensed vocational nurses (LPN/VNs). Most states have mechanisms to grant authority to advanced 
practice registered nurses (APRNs), such as nurse practitioners. A few states are involved in the regulation of nurse 
aides, ranging from maintaining registeries to, in two states, licensure of nurse aides. For the purposes of this 
summary, only the definitions, requirements, and issues under registered nurse licensing acts are considered, since the 
category is fairly comparable across the states, and similar issues cut across the other licensing categories. 

9 Mich. Comp. Laws §333.17201 (1994). 

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rehabilitative regimen ordered by and within the scope of licensure 
of a physician, dentist, podiatrist, or clinical psychologist... 
c) The performance of skin tests, immunization techniques, 
and the withdrawal of human blood from veins and arteries. 
d) Observation of signs and symptoms of illness, reactions 
to treatment, general behavior, or general physical condition, and 

(1) determination of whether such signs, symptoms, reactions, 
behavior, or general appearance exhibit abnormal characteristics; 
and (2) implementation, based on observed abnormalities, of 
appropriate reporting, or referral, or standardized procedures, or 
changes in treatment regimen in accordance with standardized 
procedures, or the initiation of emergency procedures.'° 
While the examples in the California statute attempt to provide greater clarity, they also 
suggest a breadth of definition that may include any form of support service that offers "safety, 
comfort, personal hygiene, and protection." The vagueness of scope inherent in these and other 
definitions of nursing is, in large part, unavoidable, for nursing is a knowledge-based "process 
discipline" and cannot be reduced solely to a list of tasks. The licensed nurse's specialized 
education, professional judgment, and discretion are essential elements of quality nursing care." 

Delegation 

Most state acts also include within the definition of nursing the "delegation" of nursing 
tasks by registered nurses or the "teaching and supervision of others." This component of 
nursing opens the door to the use of personal assistance service workers in performing a variety 
of "nursing" tasks. Delegated services performed by a personal assistant (PA) are generally 
treated as exempt from the nurse practice act, although a more accurate characterization may be 
that the PA's function is derivative of the nurse and therefore is indirectly subject to the nurse 
practice act. The model definition of nurse delegation used by the National Council of State 
Boards of Nursing reinforces the latter characterization: 

1 ° Cal. Health & Safety Code §2725 (West 1992). 

11 National Council of State Boards of Nursing, Delegation: Concepts and Decision-Making Process 2 (1995). 

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[D]elegation is defined as the transferring of a span of authority, responsibility, and accountability 
for the performance of an activity from the registered nurse to an assistant to the nurse. The 
registered nurse decides what to delegate and to whom, is responsible for communication of the 
delegation and obtaining feedback, and is responsible for the evaluation of the delegation. The 
registered nurse retains final accountability for the decision to delegate, for the adequacy of nursing 
care provided to the client, and for client outcomes.12 

Other Exemptions 

Other specific exemptions to a state's nurse practice act may also apply to nursing 
services performed by an unlicensed person. A 1994 survey of nurse practice act exemptions 
identified three other common exemptions that can easily apply to personal assistance service 
situations:13 

• Care by friends and family -- This exemption is the most common one expressly 
recognized in most nurse practice acts. Some states limit the exception to gratuitous care 
by family members; others include gratuitous or compensated care. Few states define 
"family" or "friends" in this context. 
Care by domestic servants -- Intended historically to recognize the distinction between 
trained nurses on the one hand and maids, housekeepers, companions, or other household 
aides who perform some caregiving duties on the other hand, this exemption appears 
increasingly archaic as the range of home "help" and home "health" services have 
evolved and expanded to include more sophisticated levels of care. Whatever the title of 
the worker, the worker cannot hold himself or herself out as a professional nurse. 
Definitions of domestic servant seldom rise above a list of job labels such as those 
used in the preceding paragraph. Nor do definitions of "domestic servant" under 
employment law or tax law dictate the meaning of the term for purposes of nurse practice 
acts, since such definitions are specific to their particular statutory framework. 

12 Vicky Burbach, "Delegation in Nursing," 15(3) Issues (1994) (newsletter of the National Council of State 
Boards of Nursing). 

13 See Charles P. Sabatino and Simi Litvak, "Liability Issues Affecting Consumer-Directed Personal 
Assistance Services -- Report and Recommendations," The Elder Law Journal 247, 325 (Fall 1996) (also released as a 
report by the World Institute on Disability, Oakland, CA, 1995). 

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Conceivably, a great deal of nursing-type caregiving could be swept under this 
exemption, although as skill levels of personal assistants rise, it is less likely that they 
would self-identify as domestic servants. 

Care under the direction of a physician (i.e., physician delegation) or other personnel." 
While not widely used, physician delegation is fairly common in the California In-Home 
Supportive Services program, the largest personal assistance program in the nation in 
terms of numbers served. 15 Whether physician, nurse, or other professional, the principle 
in common to all is that the delegator can transfer responsibility for the performance of 
only those functions within the scope of practice of that professional, and the delegator 
assumes responsibility for the delegation process. 

Program Exemptions 

Another important exemption directly relevant to those favoring the expansion of 
consumer-directed personal assistance services is a program exemption, usually created by 
legislation, for purposes of avoiding the application of nurse practice act strictures to an 
identifiable state-sponsored consumer-directed program. This approach has only recently been 
used in a few states that have sought to expand or experiment with consumer-directed options. 
For example, the New York nurse practice act was amended in 1992 to carve out an exemption 
for the state's new "patient-managed home care program" (now called the "consumer-directed 
personal assistance program"). 16 Another example, the Kansas nurse practice act, specifically 
exempts attendants who work in the state's "in-home services program." 17 To the extent that 
there are standards applicable to unlicensed persons who provide personal assistance services 

14 id. 

15 Id. at 333-334. 

16 N.Y. Public Health Law §6908 (McKinney 1995). 

17 Kan. Stat. Ann. §65-1124(m) (1992). 

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under these programs, those standards originate from state agency regulations governing the 
particular program. This fact underscores the need to be aware of the interaction or overlap 
among regulatory sources that control service delivery. The interaction can be a source of 
flexibility (in that it may give consumers more service options) or a source of confusion (in that 
consumers and even providers may be unclear about which standards, if any, apply). 

2. What Regulatory Standards Apply to Delegation? 
The elements and conditions of delegation can be looked at in several ways: first, from a 
regulatory perspective which focuses on legally prescribed minimum standards and limitations; 
second, from a clinical practice perspective which rests upon practice norms, professional skills, 
and judgment that go well beyond the minimum standards; third, from a program administration 
perspective which focuses on the efficient and appropriate utilization of resources; and finally, 
from a consumer perspective which focuses on delivering the supports the client wants and needs 
at the time needed and in the manner wanted. 

This overview of legal issues looks only at the first perspective in summarizing the 
parameters of nurse delegation. And for purposes of this discussion, the differences among state 
nurse practice acts are broken down according to the following questions: 

• Program limitations -- Is nurse delegation limited to only certain programs providing 
home and community-based services? 
• Personnel limitations -- Who may be the delegate to whom authority to perform 
designated nursing tasks has been transferred? 
• Setting limitations -- Are there limitations on the physical settings in which delegation is 
permitted (e.g., home and community-based care, institutional care)? This is often, but 
not always, the same as the "program limitation" element identified above. 
• Task limitations -- Does the law identify: a) specific tasks that can be delegated, b) tasks 
that are permitted without delegation (i.e., assignment), and/or c) tasks that cannot be 
delegated at all? 
• Required procedures for delegation -- Are specific procedures or process standards 
included in the law or regulation? 
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• Client limitations -- Must clients have the capacity to self-direct their care or are 
surrogates for consumers of impaired mental capacity permitted to oversee services? 
• Consumer role -- What substantive or procedural rights of consumers are granted or 
specifically recognized? These rights could touch upon consent, or control over 
decisions, access to service, or rights to notice and information. 
The chart at the end of this summary compares the above legal parameters in the four 
states that were highlighted in the October 1996 symposium -- New York, Oregon, Texas, and 
Washington. These states have made a reasoned effort to address nurse delegation in home and 
community-based setting, and, as such, do not really represent the norm. Most states simply 
have not addressed the issue at all. 

Personal Injury Liability Issues 

The primary question is: To what extent is a nurse-delegator liable for any injuries to 
clients caused by the acts of a nurse-delegate? The legal context for answering this question 
involves a combination of common law principles and nurse regulation. Under common law 
principles, these cases normally take the form of negligence actions. Negligence requires four 
elements generally: (1) the party allegedly at fault must have had a duty --an ascertainable 
standard of care; (2) the party must have breached that duty; (3) there must be an injury to 
another; and (4) the violation of duty must be the proximate cause of that injury. If any one of 
these elements are missing, there is no liability. There may still be a lawsuit, because almost 
anyone can assert negligence in a personal injury suit, but it will not be successful unless all four 
elements are proven by a preponderance of evidence. 

Nurse practice acts are relevant to the question of negligence because the standards 
established under the act contribute to defining the standard of care, or duty, for negligence 
purposes. Thus, to the extent that a nurse practice act prescribes criteria and procedures for 
delegation, these will be relevant to determining the first two elements of a personal injury 
negligence claim. In an actual lawsuit, the parties would have to use expert witnesses to testify 
as to the duty or standard of care applicable to the incident at issue. In states where delegation is 

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not addressed in the act, it is somewhat more difficult to define delegation standards. However, 
in any case, one must still keep in mind that a violation of duty under a nurse practice act is not 
enough in itself to create liability. If no one is hurt, there is no liability. Or if someone is hurt, 
but it was a result of something other than the nurse's violation of duty, there is no liability. 

When one examines the nurse practice acts that actually prescribe delegation standards, 
some muddiness in the standards becomes apparent. Most emphasize that the nurse remains 
ultimately responsible for the care provided, but the scope of this responsibility is not entirely 
clear. It is essential that this be clear, because being responsible for the task of delegation is not 
the same as being responsible for the actual performance of the delegated task. For example, 
New Jersey nurse practice regulations make the nurse responsible for "exercising that degree of 
judgment and knowledge reasonably expected to assure that a proper delegation has been 
made."' The Oregon nurse practice regulations suggest a somewhat higher duty of care by 
making the nurse "strictly accountable for that delegation." 19 Both these standards focus on the 
task of delegation. In contrast, Texas nurse practice act regulations state: "The RN shall be 
accountable and responsible for the delegated nursing task." 2° On its face, the Texas language 
imposes a greater duty of care by making the nurse responsible not only for the task of 
delegation but for the ongoing performance of the delegate. 

The Texas standard echos the responsibility borne by an employer for the acts of 
employees. This kind of liability is referred to as vicarious liability, derived primarily from the 
legal doctrine of respondeat superior, literally meaning "let the master answer." Under this 
doctrine, if an injury is caused by the negligence or wrongdoing of an employee acting within 
the scope of his or her employment, then the employer is held liable for that injury. 

Under common law principles, a nurse-delegator would not normally be vicariously 
liable, because the delegate normally is not his or her employee. However, the statute can 

18 N.J.A.C. § 13:37-6.2(b) (1992). 

18 Oregon Administrative Regulations §851-47-000(11). 

20 Texas Board of Nurse Examiners, supra note 177, at §218.3(8). 

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change the common law standard, and the Texas language, at least on its face, appears to do this, 

because it imposes responsibility "for the delegated task" and not just for the act of delegating. 
If nurses are held responsible to this higher standard, usually applicable only to employers, then 
they would face a tremendous disincentive to use delegation, for they would be liable for any act 
of negligence by a delegate, period, even if the nurse's training, supervision, and exercise of 
discretion in the case were flawless. 

The New Jersey and Oregon language suggests a lesser form of liability -- that of direct 
liability for the delegation process only. Thus, if the worker, to whom a task was delegated, 
negligently harms the client, the nurse would be liable only if it were established that the nurse's 
assessment, training, supervision, or other aspect of the delegating process were performed 
negligently. These are matters of "direct" liability, not vicarious liability. 

At present, the implications of this distinction are largely theoretical. Kane's 20-state 
survey of nurse delegation found that in states that have made efforts to encourage nurse 
delegation in personal assistance service settings, nurse liability problems have not 
materialized. 21 Of course this may be due, in part, to the lack of information systems to track 
such problems, as well as the lack of extensive experience with delegation. Nevertheless, greater 
clarity in the law would benefit the development of nurse delegation. 

One additional perspective on the above discussion merits acknowledgment. The 
analysis above is based upon a three-part interaction: the consumer, an unlicensed individual 
provider, and a registered professional nurse. However, other actors may also be involved, 
specifically a home care agency and an entity that pays for care -- i.e., a governmental agency or 
insurance company. Home care agencies may be involved in delegation directly or indirectly. 
The home care agency may employ the nurse, may employ the unlicensed provider, or may 
employ both. In these instances, a home care agency, as employer, is liable for any injury 
caused by the negligence of its employees committed in the course of employment. As a 

21 Kane, Rosalie A., Colleen M. 0' Connor, Mary Olsen Baker, Delegation of nursing activities: implications 
for patterns of long-term care. Washington, DC: American Association of Retired Persons, 73 pp., Nov. 1995. 

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practical matter, the liability buck usually stops with the agency since the presence of 
commercial liability coverage generally makes the agency a "deep pocket" and likely target. 
Despite an historical dearth of cases finding liability in delegation arrangements, agencies 
understandable worry about their theoretical risk undtr delegation arrangements. 

Payers of care, public or private, normally have no liability for injury caused by the 
negligence of providers for whose services they pay, at least where the payer avoids influencing 
clinical decisions. Unfortunately, one trend seen today in the context of managed care is the 
blurring of the line between provider and payer decisions. If the payer interferes with or 
attempts to control clinical decisions, then it risks taking on the mantel of liability. For example, 
if a managed care plan enrollee were in medical need of a particular covered service, but the 
managed care organization refuses to authorize it for budgetary reasons, with the result that the 
enrollee's health is damaged, the managed care organization could very well be found liable for 
the injury to the enrollee. The boundary between payer and provider responsibility is a gray area 
increasingly being tested by litigation. 

Another basis of liability that is sometimes raised in connection with nurse delegation is 
that of abandonment. In legal terms, abandonment is the unilateral termination of care when 
there is a need for continuing care and it is terminated without reasonable notice. These criteria 
are not likely to apply to a delegation situation. Where delegation is recognized under state law, 
then an act of delegation done improperly -- that is, below the applicable standard of care for 
delegation in that state -- may result in a finding of negligence, but probably not abandonment. 
For example, if it were agreed that the standard of practice for delegation in one's state required 
the delegating nurse to check the performance of the delegate every two weeks, and the nurse 
never got around to checkingup, with the result being injury to the client, we may think of that 
as virtual abandonment on one level, but it is not abandonment in a legal sense. It is negligence. 

One other liability concept that often enters these discussions is that of assumption of 
risk. In some but not all jurisdictions, assumption of risk is a defense to a negligence action if 
the defendant establishes that the plaintiff knowingly and voluntarily assumed the risk of 
conduct which might otherwise be negligent. For example, a line of malpractice cases holds that 

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if a patient refuses to follow the advice of his or her doctor, the doctor cannot be held liable for 

the resulting harm. The same cases can also be explained in terms of a related concept, that of 

contributory negligence. In other words, a patient's conduct in assuming a particular risk might 
be deemed contributory negligence in that it violates a duty to exercise reasonable care. 

With respect to nurse delegation, the consumer may or may not be able to assume certain 
responsibilities related to the delegation. It depends on whether the state's law permits the 
consumer to take on a particular responsibility. Generally, risk follows the responsibility. 
However, if responsibility for the process of delegation rests clearly on the shoulders of the 
nurse, the consumer cannot relieve the nurse of that responsibility by choosing to waive the 
applicable standard of care and to assume the risk. As said earlier, the law flows from public 
policy. And public policy in most states dictates that one cannot consent to or assume the risk of 
another's negligence. Thus, the concept of assumption of risk has limited application to the 
construction of nurse practice acts. It is more pertinent to the underlying public policy debates 
that shape nurse practice acts and models of consumer-directed care in the first place. 

As a final note to this review, it is important to recognize that responsibilities and related 
liability concerns in any endeavor change over time as functions and relationships between 
people change and as the law changes. Because delegation practices are in a formative stage, so 
too are the corresponding liability issues. Both can be expected to evolve in loose interaction. 
The purpose in examining these issues is not to sound an alarm over new or persisting obstacles 
to nurse delegation, but to assure that consumer needs and risks are responsibly and 
systematically addressed. 

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II. HIGHLIGHTS OF A NATIONAL CONFERENCE 
Cheryl Allen 
Department of Social and Health Services 
Olympia, WA 

Karen Ballard 
New York State Nurses Association 
Latham, NY 

Joan Bouchard 
Oregon State Board of Nursing 
Portland, OR 

Anita Bradberry 
Texas Association for Home Care, Inc. 
Austin, TX 

Linda Carsner 
Texas Department of Human Services 
Austin,TX 

Ted Clingner 
United Home Care 
Cincinnati, OH 

Barbara Coffin 
Berks County Office of Aging 
Reading, PA 

Gerben DeJong 
National Rehabilitation 
Hospital Research Center 
Washington, DC 

Speakers 

Susan Flanagan 
The MEDSTAT Group 
Cambridge, MA 

John C. Gilliland II 
Attorney 
Crestview Hills, KY 

Ann B. Hallock 
New York State Department of Health 
Albany, NY 

Cindy Hannum 
Senior and Disabled Services Division 
Salem, OR 

Edward Litcher 
Concepts of Independence 
New York, NY 

Bob Kafka 
Americans Disabled for 
Attendant Programs Today 
Austin, TX 

Rosalie Kane 
Long-Term Care Resource Center 
University of Minnesota 
Minneapolis, MN 

Christine Kinavey 
California Nurses Association 
Oakland, CA 

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Susan King 
Oregon Nurses Association 
Portland, OR 

Pam Matthews 
HomeCare Network 
Albany, OR 

Tom Neumann 
National Council of State Boards of Nursing 
Madison, WI 

Mike Oxford 
Topeka Independent Living Resource Center 
Topeka, KS 

Linda J. Redford 
National Resource & Policy Center on 
Rural Long-Term Care 
Kansas City, KS 

Charles Sabatino 
ABA Commission on Legal Problems 
of the Elderly 
Washington, DC 

Kay Schroer 
Home-Based Primary Care Program 
VA Palo Alto Healthcare System 
Palo Alto, CA 

Vickie Sheets 
National Council of State Boards of Nursing 
Chicago, IL 

Loren Simonds 
Oregon Client-Employed Provider Program 
Senior and Disability Services Division 
Salem, OR 

Stephanie Tabone 
Texas Nurses Association 
Austin, TX 

Kathy Thomas 
Texas Board of Nurse Examiners 
Austin, TX 

Marilyn Wurzburger 
New York State Board of Nursing 
Syracuse, NY 

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A. Overview of Symposium Themes 
In this section, we present an overview of the major themes and concerns that emerged 
from the symposium. Readers who wish to pursue these topics and to get a flavor of the 
discussions are advised to read the Appendix, which contains an edited, but still lengthy, transcript 
of the symposium question and answer sessions. 

Distorting Role of Funding Streams 

Symposium participants often discussed how funding streams for different home and 
community-based service programs affect the ability of nurses to delegate where they see fit. For 
example, the ability of unlicensed personnel to perform health maintenance tasks often depends on 
the funding stream under which a consumer receives services; it might be restricted to a Medicaid 
waiver program. This restriction creates access and equity issues for consumers. Alternatively, 
delegation activities (such as the training and oversight functions performed by nurses) may not be 
funded as separate activities. In these cases, even where the legal apparatus in a state allows 
unlicensed personnel to perform health maintenance tasks, the supportive services that would 
ensure that it is done safely and appropriately are not available. 

Potential for Cost Savings 

Symposium participants were interested to hear of the potential savings resulting from 
allowing unlicensed personnel to perform some health maintenance tasks. The New York State 
program, for example, attributed nearly $10.5 million dollars in savings to implementation of its 
exemption policy. Similarly, Washington State's policy appears to have been driven by a desire 
for cost savings. In Texas, on the other hand, adding a delegation function to its Medicaid 
program appears to increase costs because it involves funding a new entitlement service, the 
activities needed to support delegation. 

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Covert Health Maintenance Activity 

Participants acknowledged the difficulty of controlling and monitoring what really happens 
in peoples' homes in terms of health maintenance activities. They discussed the likelihood that a 
substantial amount of health maintenance activity is currently being performed by unlicensed 
personnel who receive no training for these activities because they are proscribed from performing 
them. It is open to question how widespread such covert performance of health maintenance 
tasks is in those situations where state policy forbids it; however, it appeared that symposium 
participants felt that it was fairly common. This acknowledgment of "covert activities" implicitly 
raises the question of how we can ensure that such services are performed safely, as it appears 
that they cannot be prevented. 

Indeed, the fact that consumers are using unlicensed personnel highlights problems with 
the current system. Reasons why unlicensed personnel perform these tasks seem to be a lack of 
access to nurses, due to funding issues, and restrictiveness in the exemption for family members 
(which exists in most states); only a family member could be trained to perform tasks that might 
be more conveniently or more effectively performed by someone who did not fall within a state's 
definition of "family." It appears that sometimes -- with the agreement of the family member to 
whom the tasks were delegated -- this more suitable individual does in fact perform the needed 
activities; nurses reported frustration at not being able to train the appropriate individual directly. 

Fear of Pressure to Delegate Inappropriately 

A recurrent theme throughout the symposium was the fear that allowing wider ability to 
delegate would open the door for inappropriate delegation, and indeed, would shift the burden of 
proof from "why delegate?" to "why not delegate?" The same financial pressures that encourage 
the exploration of liberalized delegation policies also create pressures on nurses to delegate 
inappropriately: these pressures include state efforts to contain the costs of home and community-
based services and the growth in managed care. To counteract these influences, nurses felt it was 
important that they retain the ability to make judgments about the appropriateness of delegation in 
all situations. Financial pressures in acute care settings are already forcing nurses to use unskilled 

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personnel in situations where nursing expertise is needed. Similarly, managed care appears to 
view nursing expertise as dispensable in many situations. 

Different Circumstances Demand Different Responses 

It was stressed that each consumer's situation needs to be evaluated individually. As one 
participant said, "the right person, the right place, the right setting" are needed. In a traditional 
model of delegation, the unlicensed attendant's competence needs to be determined. In a more 
consumer-directed model, the consumer's desire and ability to oversee services needs to be 
judged. Under both models, the consumer's overall situation needs to be evaluated to determine 
whether and for what services delegation is appropriate; this act of evaluation or judgment is an 
essential part of nurses' role. However, it was argued that nurses must also accept that 
consumers' judgment about their ability to monitor and ensure that services are performed 
correctly should count heavily in the decision-making process. 

There was considerable disagreement about the situations in which delegation is 
appropriate, and some consumers expressed distrust of nurses' ability to judge the competence of 
consumers fairly. Some participants argued that the level of acuity was not the determining factor 
in deciding whether or not delegation was appropriate; they felt that even during acute episodes, 
consumers have some stable and predictable needs where delegation would be appropriate. Their 
suggestion was to focus on activities of daily living that are stable and predictable in nature. 

Development of Nurse Education 

There was considerable discussion of the role of nurse education in preparing nurses for 
the issues raised by the ability to delegate. Some nurses argued that public health/community 
health nurses were better prepared for the type of nursing that goes on in home and community-
based service settings. Much nursing training has a more clinical/hospital-based focus. In 
particular, it was argued that training individuals in self-care activities is an important part of 
being a nurse -- and training families and consumers on how to perform or oversee health 
maintenance tasks is but an extension of this. 

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The training needed for the specialized skills involved in delegation in a home and 
community-based service environment were also stressed. For example, nurses need to assess 
care plans, teach individuals from a variety of backgrounds and educational levels, in a variety of 
environments, and consider the overall context of care. 

Exemption Option 

Much interest was expressed in the option of creating exemptions from Nurse Practice 
Acts for unlicensed personnel working directly for consumers. This option has the advantage that 
it would not, in most states, involve an overall review of Nurse Practice Acts. An exemption 
approach would allow for nursing evaluation and oversight of unlicensed personnel, in the same 
way that exemptions for family members utilize nursing expertise (although it was noted that this 
is often not funded or recognized sufficiently). 

Reconceptualization of Consumers' Roles 

A number of symposium participants were intrigued by the possibility that the 
responsibility and authority to manage services be transferred to the consumer or his or her 
surrogate. Under this transfer of authority model, the individual receiving the training on the 
proper procedures for health maintenance tasks would be the consumer or surrogate, who would 
be responsible for ensuring that the unlicensed individual performing these tasks does them 
correctly. (This is the case under New York's exemption approach currently.) Nurses would act 
as consultants to the consumer, to be called upon whenever there was a need for nursing 
expertise. One of the benefits of this model is that it has the potential to deliver higher-quality 
services because of the ability of the consumer to monitor tasks on an ongoing and informed 
basis; another is that attendant turnover is dealt with more conveniently because the consumer 
need not arrange a nurse training session. This model also acknowledges and makes use of the 
extensive knowledge that individuals with chronic, long-term conditions often have regarding 
their conditions. However, the legal mechanisms for this shift would need to be developed more 
fully. It was also recognized that this model would be appropriate for only those consumers or 

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surrogates who are capable of managing an attendant effectively. 

Acceptable Levels of Risk 

Participants expressed concern about increased risk due to delegation. Some participants 
argued that some risk is acceptable, if it results in an improved quality of life for consumers. In 
any case, some argued that it is for the consumer to decide whether a given level of risk is 
acceptable. However, others argued that if services are funded by public monies, a right to 
choose risky behaviors does not exist. Other consumers attempted to persuade participants that 
the polarization of risk and safety was false, and that quality is better assured through continual 
monitoring of health maintenance activities by well-trained and well-informed consumers who 
manage attendants and access nursing expertise when needed. Another point of view emphasized 
the importance of proper training and selection of personal assistants in order to minimize risk. 

Concern for Personal Assistants 

A number of symposium participants voiced concern for the unlicensed personnel who 
perform the health maintenance activities in lieu of a nurse. Participants voiced fear that 
individuals might be pressured into performing activities they did not feel competent to perform. 
Similarly, personal assistants might become liable should they make a mistake. If personal 
assistants have no recourse to information about their appropriate role and the legal ramifications 
of performing such tasks, they are then left in a fairly powerless situation. In addition, the lack of 
certification or formal training for unlicensed personnel means that they lack the ability to develop 
a career through building on their skills and improving their earning potential. 

Mechanisms for Accountability of Personal Assistants 

In order for consumers to be protected against fraudulent or incompetent personal 
assistants, some symposium participants felt that a mechanism was needed to increase the 
accountability of personal assistants and to give consumers information about personal assistants 
they might hire -- for example, information on whether a potential worker has fallen short of 

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standards in the past. While home health agencies, foster homes, group homes, and assisted 

living facilities can be held accountable for the workers they hire, it is less clear how consumers 

can have redress against personal assistants hired privately, short of resorting to the court system. 

However, it was emphasized that such consumers need training and support in hiring their 

personal assistants, and in this way, they could learn to select and manage personal assistants to 

perform tasks competently. 

Importance of Addressing the Liability Issue 

Symposium presentations stressed the rigorousness of the test of liability: that is, to be 
found liable, a person must have actually caused harm through breaching his or her duty of care. 
In other words, if nurses perform their delegation and oversight functions appropriately, no 
liability should apply. However, nurses, home health agencies, and personal assistants were all 
concerned about the possibility that they might be found liable should negative outcomes result 
from unlicensed personnel performing health maintenance tasks. There was fairly universal 
agreement that if this is to occur, in whatever form, the "duty of care" that each party holds in the 
process will need to be clarified. 

Clear protocols will need to be developed and agreed among the various interested parties. 
There needs to be clarity about the evaluation procedure, the amount and type of training, and, in 
individual situations, the tasks that a nurse decides can be appropriately performed by a personal 
assistant. For example, states might wish to adopt Oregon's legislative accommodation, which 
involved an amendment to its Nurse Practice Act clarifying a nurse's lack of liability for negative 
outcome as long as she has followed appropriate training and delegation procedures. 

However, these efforts would tend to protect nurses only. Symposium participants had 
few ideas on how to protect unlicensed personnel responsible for performing tasks. 

There was substantial disagreement, however, in whether delegation was best regulated 
through lists of tasks, through the settings in which it is delivered, or in other ways. Those states 
where detailed lists were used found the lists useful during the introductory period of delegation, 
but less useful over time. 

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Need for More Data 

One of the biggest issues for policymakers and state legislators is the lack of reliable data,

TI 

especially on costs and health outcomes. Even if data were collected on programs that currently 

allow delegation, there is no baseline data against which any new evidence could be compared. 

Such baseline data would need to include information on the extent to which unlicensed personnel 

are already performing health maintenance tasks and any negative outcomes associated with this. 

While the Washington State study on delegation will provide some useful information, significant 

concerns were expressed about survey methodology. 

Need for More Conversation at a National and Cross-constituency Level 

Symposium participants consistently expressed the need for more conversation about 
delegation issues on a national level that involve representatives from a variety of interest groups. 
Most discussions regarding the issue take place either at the state level, at times when actual 

r 

changes are being proposed, or at the national level, within a constituency (such as the ANA or 

NAHC). Resulting discussions within these segregated environments tend to reflect polarized 

positions. In contrast, the opportunity to fmd out the experience of other states was valued by 

symposium participants. Similarly, the opportunity of meeting with individuals from other 

constituencies, in a neutral environment, was also thought to be of value. 

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B. Approaches to Delegation in Selected States 
In this section, the presentations of the four states highlighted in the symposium are provided in 
the order in which they were presented. The write-ups are based on a transcript of the sessions; 
however, although each of the states except Washington was represented by individuals with a 

variety of perspectives, their comments have been edited for a smooth reading. 

Oregon 

Oregon panelists included Cindy Hannum, manager of community-based care policy and 
licensing in the Senior and Disabled Services Division of Oregon; Pam Matthews, a nurse and 
division director of the home care network at Evergreen Hospice in Albany, Oregon; Susan 
King, Oregon Nurses Association, who is an RN with St. Vincent's Medical Center Emergency 
Department; Joan Bouchard, executive director of the Oregon Board of Nursing; and Loren 
Simonds, a consumer and a policy technician for the Oregon client employee provider program, 
in Senior and Disabled Services. 

Oregon likes to do things a little bit differently. Back in 1981 in Oregon, a law was 
passed that gave people a right to live outside of traditional institutional nursing facilities; it was 
in fact the first state in the United States to have a home and community-based waiver. The state 
therefore has a very advanced system of home care, foster care, residential care, and assisted 
living. 

Senior and Disabled Services Division is the administering agency for all of the Medicaid 
long-term care programs and does licensing and regulation for nursing and community-based 
care facilities. About 40 percent of people who require long-term care receive services that are 
Medicaid funded, while 60 percent pay privately. 

The Medicaid agency is guided by an overall philosophy of shared values. These shared 
values apply to policy and program development for all Oregonians, not just those who rely on 
the Medicaid program -- this is important because most people do in fact pay for long-term care 
out of their own pocket. These shared values are public policy. 

The first value is that care must take place in the least restrictive environment. All of 
Oregon's community-based care programs are built on the premise that people remain in their 

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homes rather than being served in a traditional nursing facility. Whatever one's impairment, an 
Oregonian has the right to live in the most independent setting. 

"Aging in place" is very important, as are autonomy and consumer-directed care. The 
aim is to combat the medicalization of long-term care. Other important factors are quality, 
access to services, and consumer satisfaction. Cost-effectiveness is important, too -- people have 
to be able to buy care. Quality of life, quality of care, and protection and safety are emphasized, 
along with the guiding operational principles of choice, dignity, independence, and a home-like 
environment. 

These values seem to have an impact: Oregon has been successful in reducing 
institutionalization. Not only do all elderly and disabled persons in Oregon have access to 
services, most of these services are delivered in the community. Only a third are in nursing 
facility care. In Oregon there are more people with comprehensive long-term care needs outside 
of nursing facilities, than in. 

Consequently, the state's home care program is huge, particularly when the proportion of 
funds devoted to home care is compared to other states. It is also extremely popular. As of July 
of 1989, there were 2,335 people served through that program. In 1996 there were 8,496 -- an 
increase of 364 percent in seven years. The main reason given for this popularity is that people 
value their independence and want to be able to direct their own care, whether they are elderly, 
newly injured, or born with a disability. 

Oregon also has the highest number of licensed foster homes per capita in the United 
States. The total number is nearly 2,400 licensed foster homes for the general public. These 
normally serve five or fewer residents, who tend to have fairly severe disabilities. 

Oregon also has residential care assisted living facilities that serve a large number of 
people. These assisted living facilities fall into a very distinct model. These are private 
apartments in a residential setting, with a very strong philosophy of consumer-directed care. 

Nurses contribute their high level of professionalism to ensure that nursing activities help 
to achieve Oregon's shared values. They play an important role in supporting people who live in 
the community and in other community-based settings; they act as visiting nurses and do overall 

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health care assessments and planning. 

Delegation is a key part of the system. The Medicaid agency has worked collaboratively 

with the Board of Nursing, and the Board has been generous in allowing nurses discretion to 

delegate largely as they see fit. Oregon Board of Nursing has had delegation rule since 1988, 

which has allowed nurses to assign administration of medication and delegate skilled nursing 

tasks to people in a variety of settings where nurses are not regularly scheduled. That includes 

adult foster care homes and assisted living settings, but not nursing homes and hospitals. 

Delegation actually came about at the request of nurses. At the time, following the 
introduction of DRGs in 1983-84, people exiting hospitals were much sicker than before and 
required more intensive services in the home or wherever they went after the hospital. Nurses, 
particularly home care nurses, had a short time to deliver services and help a person become 
independent in their own care. They came to the Board to ask for a mechanism that would 
enable them to turn over some of their duties to others and yet be protected against liability. 

Since the legislation came into effect, that goal has been achieved. The Board of Nursing 
has taken very few disciplinary actions in the eight to nine years that the delegation rules have 
been in place. One of the reasons is that delegation rules of the Board of Nursing are quite 
specific in terms of what a nurse must do in order to delegate. 

The liability issues, which are one of the biggest barriers from a nurse's perspective, have 
also been addressed head-on. The Board of Nursing has a liability clause in the Nursing Practice 
Act that makes it clear that once a nurse complies with those rules, the nurse would not be liable 
for disciplinary action of the Board, even if there had been a bad outcome, as long as she had 
followed the appropriate delegation process. So, if the delegating nurse does the training and the 
delegation procedures properly, and there's a properly trained delegate in that person's home 
who negligently harms the individual, that delegate -- unlicensed person -- could be liable for the 
injury. But the delegating nurse isn't necessarily liable, if she/he has done everything properly, 
nor is the nurse liable for civil action if she/he is in compliance with the Board rules and law. 

But delegation is also incorporated into the state's public policy on long-term services. It 
is conceived of as a very specific type of nursing, a very sophisticated level of nursing -- not just 

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teaching tasks. Nurses must have the capacity to assess care plans, teach in a variety of 
environments, and consider the overall context of care -- the big picture. Because many nurses 
have not had the experience and background to do this, the Medicaid agency has set a goal to 
improve nurses' abilities in these areas. 

One of the key tools for ensuring that nurses fulfill their role as community nurses, 
responsible for delegation, is through policy guidelines developed by the Medicaid agency for 
nurses on contract and registered with the agency. Senior and Disabled Services employs about 
150 independent professional nurses by contract. The guidelines set the standard of practice. 

These guidelines cover a range of issues brought up by the Board of Nursing. They 
provide specifics on how to do delegation. They address issues around restraints and psychoactive 
medication. But most importantly, they set out that holistic pattern of assessment and care 
planning that nurses are expected to do. 

The state does not have a list of tasks that can be delegated, although there are two task-
specific restrictions -- the two things that absolutely cannot be delegated are intravenous 
medications and injections. Other than these two tasks, delegation is left to the discretion of the 
nurse. This is primarily due to the variability of situations and differences in the ability of 
delegates to perform certain functions. In some situations even the most simple basic task would 
not be appropriate -- it is the nurse's job to assess the situation and decide the tasks that can be 
safely delegated. 

Nurses felt strongly the need to retain that ultimate authority over the appropriateness of 
delegation in individual circumstances. They need to feel that the person they are delegating to 
knows what they're doing and is doing it appropriately. They need to be able to say whether a 
person is or is not a safe person to delegate to. They need to be able to rescind the delegation. 

Because delegation grew out of the needs of nurses, and because the procedures, 
including the guidelines mentioned, were developed in cooperation with nurses, the Medicaid 
agency and the Board of Nursing have maintained good relationships with nurse representatives. 
The Nurses Association in Oregon is committed to people receiving care whatever way they 
chose -- with certain caveats, of course, safety being one of them -- and in the environment that 

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they choose. Most nurses in Oregon support delegation and seem to feel that the process works 
well. 

There is also strong consumer representation in Oregon, through a forum called the 
Oregon Conference on Disabilities. This is not organized by professionals who say "we know 
what is best," but by persons with disabilities. It has been successful in creating an environment 
where people feel like they're being heard, rather than focusing on bashing professionals. The 
Conference has been able to develop mutual respect and evolve solutions. 

One of the big issues that the state has faced is the payment issue. Under Medicare, 
delegation is not considered a skilled service. Nurses who are setting up delegation for a 
Medicare client through training and setting up a care plan can be paid so long as there is 
something that resembles a skilled service reimbursable by Medicare. But once the consumer's 
situation is stabilized, Medicare does not continue to reimburse. Under the delegation rules, 
however, nurses are required to visit at least every 60 days to monitor the situation. Nurses are 
forced to suggest that clients pay for the service themselves in order to have the nurse come back 
and redelegate periodically. But the reality is that many of patients, particularly those on 
Medicare, can't do that. Home health agencies run into problems by not being able to be paid 
for the care and end up "eating the cost." 

The Medicaid agency, on the other hand, pays for the function of delegation both through 
Medicaid personal care dollars and the waiver program. The agency does not buy delegation; it 
buys consultation. The nurse acts as a consultant by assessing whether delegation is appropriate 
in a given situation. 

Other issues are raised by the predominance of managed care in Oregon. While managed 
care is probably better at recognizing the need to reimburse activities associated with delegation, 
it is also more likely to exert pressure to delegate inappropriately, because it's less expensive 
than paying for nursing. Nurses are forced to justify the need for repeated visits. 

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Texas 

Texas panelists included Anita Bradberry, Executive Director of the Texas Association for Home 
Care, previously with the Texas Department of Health; Linda Carsner, Health Policy and 
Quality Assurance Manager for Community Care Programs at the Texas Department of Human 
Services, which serves about 75,000 elderly and disabled individuals; Stephanie Tabone, Texas 
Nurses Association; Kathy Thomas, Executive Director and Director of Nursing Practice for the 
Texas Board of Nursing Examiners; and Bob Kafka, organizer and advocate for ADAPT of 
Texas and co-director of the Institute of Disability Access. 

A number of years ago, advocates for persons with disabilities worked with the Texas 
Department of Human Services to formulate a policy on delegation. This policy allowed 
physician delegation of health-related tasks in two community-based programs serving people 
with disabilities -- Client-Managed Attendant Care (a state funded program) and Community 
Living Assistance and Support Services (a Medicaid waiver program for persons with related 
conditions who are not mentally retarded). Physician delegation to an unlicensed attendant was 
needed in order to support clients living at home within the cost ceilings established for their 
care. Another program also allowed delegation -- the Home and Community Services program 
(a Medicaid ICF/MR waiver program), which is administered by the Texas Department of 
Mental Health and Mental Retardation for persons with mental retardation. 

Physician delegation worked well in these programs because each client had a primary 
physician who was knowledgeable about the client's needs and capabilities, and comfortable in 
delegating the needed tasks. The success of physician delegation in these programs prompted 
advocate and state interest in RN delegation. A special task force on RN delegation was formed 
by the Texas Board of Nurse Examiners in conjunction with the Texas Department of Health. 
The task force included representatives of various state agencies, advocacy groups, and 
providers. This cooperative effort resulted in new delegation rules for Texas RNs. 

Although delegation rules have been in place in Texas since 1987, the rules primarily 
addressed acute care settings, such as hospitals, long-term care facilities, and acute home health. 
In 1992, however, further changes to the rules were made because of the increased demand for 
community-based services and because of concerns expressed by advocates. 

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The changed rules addressed independent living environments, such as workplaces, 
schools, homes -- wherever the individual client is, provided the client has a stable and 
predictable condition and participates in the management of their care. As long as they met 
these conditions, clients were considered to be in the same situation as those who would be 
performing these services themselves -- except for their disability. Clients were broadly defined 
to include individuals receiving services as well as family members or significant others. 

Currently, delegation in Texas is based on an itemized list of things that are delegable, 
things that are not, and things that are delegable as long as certain conditions are met. The rules 
provide a lot of examples, mostly because nurses were initially very reluctant to delegate and 
wanted very clear, detailed guidance on what was appropriate. Tasks include some forms of 
medication administration, including topical and oral medications, suppositories, assistance with 
tube feedings, catheterization, assistance with bowel programs, and other similar tasks. 

In 1993, the health and safety code in Texas was amended to require the Texas 
Department of Health and the Board of Nurse Examiners to develop a Memorandum of 
Understanding (MOU) that would define certain limited situations wherein certain tasks 
performed by unlicensed personnel are not considered to be the practice of nursing. Although the 
state had never actively prosecuted anyone for practicing in these kinds of scenarios, the MOU 
was developed with the health department to make the legal situation clear. Basically it clarified 
that personal care was not considered nursing, nor was short-term respite (when families hire 
people to take care of their loved ones or family members when they go away). The registered 
nurse assigned to the client is responsible for determining the appropriate level and frequency of 
supervision. 

Most of the services covered by the MOU are really traditional personal care services, 
rather than specific medical nursing or health-related tasks. With regard to respite, the types of 
tasks are broader and the delegation is limited to that time frame. Both delegation situations 
allow medication administration, of course, and other things. 

The home care association was very supportive of the move toward delegation. It 
recognized in the late 80s that there was a need for the use of home health aides to administer 

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medication. It was clear that the very fine line between assisting with medication and giving that 
medication was being crossed everyday. The first solution to this problem was to create a 
monster called a home health medication aide -- there are probably only 30 left in the whole 
state, because they can perform such a limited set of tasks and there's no reimbursement specific 
to the services they provide. But they were created to fill the need that existed -- to administer 
meds in an unstable, unpredictable environment. 

Now, with the changes, a nurse can delegate administration of meds in those stable and 
predictable situations to an unlicensed person. Because the aide or attendant is normally in the 
home doing other things, it's logical for them to be able to administer the meds while they are 
there. The need to pay a nurse to travel to the home and perform the task is eliminated -- and 
that has worked very well. 

The MOU was revisited in 1995. While recommendations for some revisions were made 
to the advisory committee, the Texas Department of Health did not accept the recommendations 
-- so the revised MOU is not in effect at this time. These changes would have allowed even 
more services to be delegated in respite situations, such as gastrostomy tube feedings. Consumer 
advocates felt strongly that aides should be able to do injections, too. However, the Board of 
Nurse Examiners was strongly opposed, as were individual nurses. Because the cooperation and 
support of nurses was considered so essential to the success of the effort, the compromise stood. 

In addition, the lists of tasks that define the delegation process is now often seen as a 
barrier. Although it was necessary in the beginning because it gave nurses reassurance, it is now 
causing some problems because it limits delegation. 

Another peculiarity of RN delegation in Texas concerns how the various community-
based programs administered by the Texas Department of Human Services (TDHS) have 
addressed the issue. TDHS's large personal attendant services program, which currently serves 
about 73,000 individuals, does not allow RN delegation. However, the Community-based 
Alternatives (CBA) program (a Medicaid waiver program), which services 16,000 clients (but is 
now closed to intake), does allow RN delegation. 

The reason for this limited access to delegation is because there is no funding to include 

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RN delegation in the personal attendant services program. However, the Medicaid waiver 

program, CBA, provides reimbursement for delegation functions. 

TDHS conducted a study which used department-registered nurses to assess how many of 
the clients who were getting attendant care services from the personal attendant services program 
could benefit from RN delegation. It found that about 12 percent of the people who were getting 
personal care could also benefit from getting RN delegation. The majority of those clients 
needed medication administration. However, it would have cost about $8 million to add the RN 
delegation piece to personal attendant services. Unfortunately, as in most states, budget 
neutrality issues intervened. Because the legislature has restricted expansion of the services -and 
this was considered an expansion of personal attendant services -- funding has not been 
approved. 

Advocates, of course, want to expand the availability of delegation to the 73,000 people 
using the personal attendant care program. However, it doesn't seem likely that this will happen 
anytime soon, given the budgetary constraints placed on state-administered programs. 

Texas, unlike Oregon, does not explicitly address nurse liability issues. However, the 
Board has taken very few actions against nurses for improper delegation. It has tried to 
encourage delegation through issuing guidelines and teaching in workshops how delegation 
applies in different settings. It's important to remember that, in Texas, delegation rules apply in 
acute settings as well as community-based settings. If liability were restricted, the fear is that 
inappropriate delegation will occur in some acute care settings, particularly given the pressure 
from managed care systems to delegate. Acute care nurses fear being the one nurse responsible 
for supervising 50 unskilled people. 

The consumer role has been pretty active. In some cases consumers and program 
administrators have worked well together and in others, not. Participants in the process realized 
that there was a huge gap in mutual understanding. One of the key things advocates learned was 
that nurses' fear of delegation responsibilities weighed more heavily on the acute institutional 
side than on the community settting. 

Nurses have a natural reluctance to delegate if they are acute care nurses and not used to 

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the community setting. Even home health nurses were opposed to delegation in the beginning. 
However, once they become acclimated to a community practice, and they begin to see how it 
could work, the reluctance goes away. The same nurses who initially opposed it most 
vehemently have become the biggest advocates for it and active in the Medicaid Community-
based Alternatives program. 

However, advocates argue that the nursing community and the home care industry still 
don't get what advocates mean when they say they want control. They feel the health 
professionals and providers still focus on doing for and not working with, using health and 
safety concerns as the reason to limit consumer control. The most contentious issue has been the 
activities that advocates consider activities of daily living, such as catheterization, pill 
administration, tube feeding, and other such things. 

But despite the differences, there appears to be a sense that all the parties can work 
together to develop compromises. The thing that really worked in Texas was having the 
different groups sitting down at the table. Even though there were disagreements, everyone was 
at the table and had some input. 

New York 

New York panelists included Karen Ballard, Director of Nursing Practice and Services Program 
of the New York State Nurses Association; Marilyn Wurzburger, member of the New York State 
Board of Nursing and Executive Vice President of San Camilas Health and Rehabilitation 
Center, in Syracuse; Ann Hallock, Program Manager for the Cash and Counseling 
Demonstration and Evaluation Program in the Office of Medicaid Management, New York State 
Department of Health; Ed Lichter, Director of Concepts of Independence, a consumer-directed 
personal assistance program, filled in for Ira Holland, who unfortunately could not attend. 

Delegation in New York State to unlicensed personnel does not truly exist. Technically, 
"delegation" in New York State is the designation of professional responsibilities to an 
individual licensed and qualified by education and competence to perform them. So, the word 
"licensed" in the definition of delegation eliminates unlicensed personnel. 

In the '80s home care came to the forefront and all kinds of problems starting surfacing. 

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In particular, the question was raised of whether good home care nurses could teach, give 
information, or instruct friends and so forth in providing services to consumers. 

Nurses had been finding themselves in impossible situations. They were allowed to teach 
only people who fell within the definition of "family" in the state of New York. But nurses 
would be put in situations where they knew they were not teaching the family member -- they 
were really training the person standing next to the family member, who would ultimately be 
delivering care. But nurses could not train that person directly. 

Meanwhile, the labor pool was dwindling. Who was going to provide the services that 
were needed? 

A very active consumer group, Concepts of Independence, got the ear of a very powerful 
legislator in New York State, who, in looking at the problem, saw the importance of the issue 
and decided to do something about it. A bill was introduced into the legislature to expand the 
tasks of home health aides and personal care aides. As this bill was introduced, it caught the 
attention of the state education department and the state board for nursing, which were then 
forced to address the issue. 

At the same time, a task force had been set up with the social service department and the 
Department of Health to determine a matrix for what kinds of tasks could be performed by 
personal care workers and home health aides. It produced a very thick packet of itemized lists of 
tasks. 

These events brought everyone to the table. The consumers, representatives from 
legislators' offices, the state board for nursing, home care providers, representatives of the 
nursing industry, and representatives of the social service and state health departments all came 
to the table. All came with their own agenda, but with a common goal -- to work on this problem 
and to see how it could be rectified. 

What they produced was an amendment to the exemption clause of the New York State 
Nurse Practice Act. The existing language created an exemption from the Act for family 
members. (That in itself caused problems because the term "family member" lacked definition.) 
The amendment said that a family-employed substitute would be the same as a family member. 

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The term "family-employed substitute" was not further defined -- it could include the self-
directed consumer or anyone they chose. The substitute could be taught and educated, be given 
information, and make decisions on what they wanted to do. 

Nurses saw benefits to taking this approach in preference to changing the rules on 
delegation. At first, they had tried to get the state of New York to redefine the word family. 
However, for a lot of sociological and social political reasons, the state was unwilling to do so. 
And, although nurses saw a need for delegation, they saw huge legal and other problems in 
changing delegation legislation directly. So the option to amend the exemption clause turned out 
to be the most feasible compromise. But it wasn't easy. There was a lot of objection to 
changing, and many of the nursing groups received a lot of hot criticism for being willing to 
expand the definition of family and the exempt clause. 

There are really two sections in that amendment to the Practice Act. One is a family 
substitute section, where the legislation says that, "In 1992 we amended the Nurse Practice Act 
to allow family members, household members, friends or household employees, to provide 
nursing services as long as they are not paid for the services and do not hold themselves out as 
trained nurses to anyone else." Then there is a family-employed substitute section. It goes on to 
say, "If the family member, household member, friend, or household employee is chosen by the 
patient to be the employee under the Patient Managed Home Care Program, they can be paid for 
the services provided." (The Patient Managed Home Care Program was later renamed the 
Consumer-directed Personal Assistance Services Program.) 

It remains unprofessional conduct in our regulations to violate the state's delegation 
definition, which is very strict. Anyone who does not qualify as a family-employed substitute is 
governed by the fairly strict rules on delegation that apply to licensed personnel. The State 
Health Department regulates activities performed in a traditional home care setting, so that it's 
very clear what home health aides can do and what they can't do. Rules were developed by the 
State Department of Social Services, the Health Department and the State Nursing Board that list 
permissible tasks for level one and level two personal care workers, and a matrix for home 
health services. The matrix for home health services allows certain kinds of tasks to be done 

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under permissible conditions -- determined by setting, provider competency, and other factors. 

The exemption to the Nurse Practice Act was amended and went into legislation in 1992. 
It appears to be working. Under this approach, the responsibility of ensuring that tasks are 
performed appropriately is transferred to the consumer. However, the legislation clearly states 
that first, a nursing assessment must be performed by a registered professional nurse. This 
assessment determines whether the consumer or the surrogate is capable of overseeing the 
substitute and whether the setting is appropriate. (As of the most recent set of legislation, the 
1995 legislation, surrogates can now take on the responsibility of directing substitutes.) If these 
conditions are met, the family-employed substitutes can do anything an RN can do with the 
appropriate instruction and under the supervision of the nurse. 

It is important to note that the discussion has been very setting specific -- the issue is seen 
differently in home and community-based settings than it is in institutional settings. The mantra 
is, "the right person, the right place, the right setting." There are different expectations 
regarding the level of care people should receive, depending on the setting. The nurse must make 
an evaluation and assessment about the ability of the consumer or their surrogate to self-direct in 
home and community-based service settings. 

The exemption approach applies only to the states' consumer-directed personal assistance 
program, which uses unlicensed personnel. Of course, the Concepts of Independence program 
had been in operation since 1980 and the state, as regulator knew that delegation was likely 
occurring in that program. But the state was committed to seeing that the consumer-directed 
program work and, really, ignored what was going on. Although Concepts was the only such 
program for a long time, statute set in 1995 requires that the consumer-directed program be 
available to every consumer across the state. This means that everyone in New York State's 
personal care program, which serves over 65,000 people, can participate in the program. 

The consumer-directed program has worked very well. It began with a group of 
consumers who were very concerned about the changes that were proposed in the city of New 
York. The state was going from a dual payment system, where they were having independent 
contractors providing the services, to a vendor system, a more traditional framework of service 

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provision. Consumers presented an idea for an alternative program where they could do their 
own hiring, training, and supervision of their own home care workers. Consumers would use an 
intermediary support organization -- Concepts -- to handle benefits, payroll, and related tasks. 
Concepts would take on the job of ensuring workers' compliance with relevant employer 
responsibilities. It is estimated that the program has saved about $11.5 million a year because of 
the savings associated with using family substitutes. 

Concepts serves people who generally have stable conditions rather than acute illnesses. 
About 56 percent of them are over 55 years of age. A few are over 100 years of age -- they tend 
to ask a lot more questions and are very feisty. Consumers stay in the program for 5.4 years, on 
average -- and about one-third of the consumers have participated for more than nine years. 

All consumers participate voluntarily. The whole key to the program is that the 
consumer accepts the responsibility and the liability for the services they direct; every time an 
attendant is hired the consumer must complete a form which confirms that they accept that 
responsibility. 

Many of the 440 consumers of Concepts need fairly intensive services that are a routine 
part of their day-to-day life. Right now about 270 consumers receive high level services: 64 
require some sort of ventilatory support, 130 are quadriplegic, and 188 receive more than 12 
hours of service per day. Eleven people in the program require injections. 

Some of the controls that go into this program are that every consumer must be certified 
by an RN and must be capable of handling the training and supervision associated with their 
high level service. That can mean that consumers could be approved for the program, but may 
have one particular task that the nurses from the Social Services Department may feel is 
inappropriate for them to manage individually. Consumers are monitored through at least two 
nursing assessment visits per year and one or two visits by the Social Service Department. In 
addition, consumers, various medical professionals, or personal assistants may alert Concepts if 
there are important changes in the consumer's situation. 

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Washington. 

Cheryl Allen, the Community Health Policy Coordinator for Aging and Adults Services 
Administration in the state of Washington, is responsible for the state-wide implementation of 

the nurse delegation services within aging and adult services administration. Washington 
State's effort is of particular interest because an evaluation component was mandated as part of 
program implementation. 

Aging and Adult Services provides services to elderly and disabled individuals in 
community-based settings and in long-term care settings in nursing homes. There is a real 
disparity of services between individuals because of where they chose to live. A large 
percentage of people said "I don't want to live in a nursing home. I prefer to live in an in-home 
type care setting, in a community-based setting." However, it was very difficult to respond to 
these preferences because approximately one-third of the people being served by Aging and 
Adult Services were in nursing homes. And this one-third were getting three-quarters of the 
agency's money -- that's three-quarters of the budget going on nursing home placement. So the 
department began to look at ways of supporting community-based care. 

Back in 1989-90, Aging and Adult Services began to look at unlicensed practice in 
cooperation with the Board of Nursing. Not much happened until the tax revolt took place and 
the state passed Initiative 601. In Initiative 601, the state taxpayers mandated that the state 
should limit its spending and growth, and they attached increases in spending. 

This provided Aging and Adult Services with an opportunity to present some of the 
issues it was facing to the legislature. The primary issue was that, at the same time that the 
agency was restricted to a five percent increase in spending, the population it served was 
growing at two to three times that rate. The agency decided to propose legislation that totally 
revamped the community-based care system. Nurse delegation was an important part of that. 

In 1995 the Washington state legislature passed legislation that amended the Nurse 
Practice Act. Washington State had attempted to model its delegation practice after Oregon's, 
because Aging and Adult Services Division thought highly of the way Oregon appeared to be 
working. However, the Washington state legislature took a very conservative approach to nurse 
delegation and limited it, by restricting the settings in which delegation can occur and by 

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limiting the tasks that could be performed. 

Settings were limited to three: our licensed adult family homes; our DD certified 
residential programs; and our licensed boarding homes that have assisted living contracts. It was 
also limited in tasks: oral and topical medications; eye, ear, nose drops; some real basic G-table 
feedings; clean catheterization; and clean dressing changes. 

The Washington changes are looked at as a pilot project, because of the many concerns 
about delegation. To respond to the fear and apprehension expressed by many opponents of 
delegation, the legislature commissioned a study of nurse delegation as it is implemented. There 
appeared to be no real data about what nurse delegation was all about, who it impacted, what the 
cost was, how it affected satisfaction, or what the outcomes were. 

The University of Washington School of Research was appointed by the legislature to do 
the research. This was a battle between the agency and the nursing commission -- and the 
University of Washington got pulled into this battle. There are many, many interested parties in 
this process. The legislature did something unique -- it continued to participate in the process by 
setting up a monitoring committee. 

The study will sample each of the three different settings, focusing on some very specific 
issues -- the legislature was very specific in the statute about everything. First, it required that 
the Board of Nursing put nurse delegation protocols into rule -- which had never been done 
before. It was also very specific about the content of the study, which really tied the hands of 
the researchers in developing a research model. The legislature mandated that the study look at 
eight different issues: 

n the patient, nurse, and nursing assistant satisfaction; 
n medication errors, including those resulting in hospitalization; 
n compliance with required training; 
n compliance with nurse delegation protocols; 
n incidents of harm to patients, including abuse and neglect; 
n impact on access to care; impact on quality of life; and 
n incidence of coercion in the nurse delegation process. 

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The legislature also placed restrictions on who could become a delegate. Anyone to 
whom tasks are delegated must be either a nursing assistant "registered" or nursing assistant 
"certified." One reason for the restriction was to ensure that there was a process for disciplinary 
action, if any problems arose. 

In our state, to be "certified" as a nursing assistant, a person must have 85 hours or more 
of training. To be "registered" as a nursing assistant, all that is required is that the individual 
send $10 to the Department of Health to be placed on a registry. The advantage is that these 
individuals then fall under the Uniform Disciplinary Act. Even though there's no required 
training for the registered nursing assistants, those who wish to work for the agency must take 
part in some training. They receive 22 hours of fundamentals of care-giving training. Both 
categories must undergo a nine-hour course of core delegation training, which was mandated in 
the legislation. 

The study only got going this year (1996), although the legislation was passed in 1995. 
This delay was partly due to the nursing commission's task force, which finalized the protocols 
only last March. However, data are beginning to be collected from some of the existing data 
sources. Training sessions have also taken place for nurses, even though there was no mandatory 
training for registered nurses. There have also been workshops to bring some of the nurses up to 
speed on delegation. Also, there has been training for nursing assistants, the delegates. 

The pre and post tests have also been set up. At the beginning of the training, nurses are 
given a questionnaire about how much they know about delegation, what do they feel about 
delegation, have they ever delegated. This is to get a feel for where they are at the beginning of 
the workshop or the training. Then at the end of that training, a post test is administered to see if 
there has been any change in their level of knowledge. These tests will be repeated. 

In this study each of the state's six regions will he looked at, with at least one of the three 
identified settings being looked at within those regions. For the community-based setting, 
information will be obtained from assessments and other documentation. The study will begin 
with a pilot, and then move into focused interviews. Research assistants will choose individual 
facilities to focus on. Within those facilities, specific clients who are receiving delegation will 

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be studied, along with everyone associated with that client, whether it's the delegating nurse, the 
nursing assistant doing the care, family members, or the case manager that placed them. They 
all will receive in-depth questionnaires and interviews. Because some of the individuals have 
problems with communication, researchers will have to use a lot of different ways of extracting 
information. Some of the other elements that will be looked at are the medication issue, 
compliance with training, nurse compliance with delegation protocols, and some other issues. 

This whole process is voluntary. The nurse has to be willing to delegate, the nursing 
assistant has to be willing to receive the delegation. The client has to agree to the delegation, 
and want it. This applies to the study also. 

It is important to note that the study is not going to determine whether delegation works 
or doesn't work, because of the lack of comparative data. There is nothing to compare it against. 
This study will provide baseline information on delegation in the state of Washington -- not 
whether it's good or bad, but information that will contribute to additional research and enable 
judgments to be made. It will help in making policy decisions, because it will address concerns 
regarding accountability, liability, and coercion. The study will provide data on whether 
consumers are getting the services, and the impact on those individuals. 

The study is to run for approximately a year. By December of 1997, Aging and Adult 
Services is supposed to go back to the legislature with recommendations from the study to 
hopefully expand, modify, and improve this nurse delegation. However, because it has been 
such a time-consuming and complex process in getting this going and involving all the interested 
parties, Aging and Adult Services is going back to the legislature to request a one-year extension 
to this study. 

The hope is that the study will produce some real concrete data. Delegation is too 
important to the state's efforts and it affects too many lives for the study to be halfhearted. 
Aging and Adult Services is very interested in what the outcomes are going to be. But 
remember, there will not be any clear decisions about what does and doesn't work -- the study 
will only provide a baseline to how we can make better policy decisions around community-
based care and nurse delegation in Washington State. 

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C. Comparison of Nurse Delegation Provisions in Four States 
,,,,,a,,,,.:.: 

R. iilitool
...: ea. 

1. Delegation or 
Exemption? 
& Source of Authority 
2. Program Limitations on 
Delegation 
3. Personnel Limitations. 
Who may be a delegate? 
iw 

Exemption. 

N.Y. Pub Health Law §3622, 
amended in 1992, 
establishing the "patientmanaged 
home care 
program" -- now called the 
"consumer-directed personal 
assistance program." The 
nurse practice act, N.Y. 
Public Health Law §6908, 
was amended to carve out an 
exemption from the nurse 
practice act for this program. 
Applies only to the state's 
consumer-directed personal 
assistance program 

Not applicable. Any person 
who provides care in the 
exempt program is exempt. 

October 1996 

.... .. 

Delegation. 
State Board of Nursing 
regulations amended in 1987 
(Oregon Administrative 
Regulation §851-47-000 to 030) 


No limitation 

Unlicensed person 

:::: , ::::::: 

Delegation. 

Bd. of Nurse Examiner 
regulations -- 25 Tex. Admin 
Code §§217.11 & 218. 
Changed in 1993 in 
conjunction with new 
category of service, 
"personal assistance 
services" recognized under 
Home and Community 
Support Services Act of 
1993. Texas Dept of Health 
regulations and memo of 
understanding between Dept. 
of Health and the Bd. of 
Nurse Examiners provides 
guidelines. 

Applies only to programs 
under the jurisdiction of the 
Texas Dept. of Health, 
providing home and 
community support services. 

Unlicensed person 

.. 

as 

Delegation. 

1995 amendment to 
regulatory statute governing 
"nursing assistants" (must be 
either certified or registered 
under Washington law) Rev. 
Code of Wash. Ann. 
§18.88A.210 to .240. 

Applies only to individuals in 
community-based settings 
regulated by the Dept. of 
Social & Health Services, 
specifically: (1) community 
residential programs for the 
developmentally disabled; 

(2) adult family homes; and 
(3) boarding homes 
contracting with DSHS to 
provide assisted living 
services. 
Certified or registered 
nursing assistant 

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liiiri::::::::::::ggawiiiimupliii!idl ic. - • • - • • - - - ---- • 

4. Setting Limitations. The program limitations, 
noted above, have effect of 
limiting the exemption to 
home care settings. 
5. Task Limitations: 
• Tasks that can be Not applicable delegated 
no delegation permitted 
.. -- 
• Tasks that are If eligible for the consumer-
permitted without directed program, all tasks 
delegation are consumer controlled with 
no nurse delegation required. 

• Tasks that cannot Not applicable 
be delegated at all 
(in addition to the 
task of delegation 
itself): 

•,::,,,.:,:::,:::::::::::,::::::::::::::::::,::.:::... - :.:::::::::::::::, 
Only acute care and long-
term care institutions are 
excluded from delegation 
option. [OAR §851-47000(
2)] 

Provides list/criteria [OAR 
§851-47-000 to -030] 

"Basic tasks of 
client/nursing care" - include 
but not limited to ADLs. 
Assignment and supervision 
by RN is discretionary for 
these. [OAR §851-47-010(2) 
(1993)] 

None specified, except that 
the R.N. may not "delegate 
the nursing process in its 
entirety to an unlicensed 
person." [OAR 851-47030(
2)] 

..::::*:::::::. ...1::::::::::::::::::: 

Any independent living 
environment, defined as a 
client's individual residence, 
which may include a group 
home or foster home, or 
other settings where a client 
participates in activities, 
including school, work or 
church [Bd of Nursing 
Examiners' regs (§218) and 
Dept. of Health regs] 

Provides list/criteria 

[25 Tex. Admin. Code §218] 

 

"Personal care" (feeding, 
preparing meals, transferring, 
toileting, ambulation and 
exercise, grooming, bathing, 
dressing, routine care of hair 
and skin, and assistance with 
medications that are normally 
self-administered) [25 TAC § 
115.26(c)] 

The nursing task must not 
require the unlicensed person 
to exercise judgment or 
intervention except in 
emergency. [22 TAC 
§218.3(4) (1993)]. This is 
supplemented [at §218.7] 
with list of illustrative tasks 
that may not be delegated. 

Applies only to individuals in 
community-based settings 
regulated by the Dept. of 
Social & Health Services, 
specifically: (1) community 
residential programs for the 
developmentally disabled; 

(2) adult family homes; and 
(3) boarding homes 
contracting with DSHS to 
provide assisted living. 
[RCWA §18.88A.210(1)] 
Provides list/criteria 
[RCWA §18.88A.210 & 
_ WAC §246-840-910] 

None specified (so 

presumably the definition of 

"registered nursing 
practice" [RCWA 
§18.79.040] must be 
consulted.) 


 _ 

-
None specified (But not clear 
whether the given list of 
delegable tasks, at RCWA 
§18.88A.210(4), is merely 
illustrative, or exclusive and 
thus limiting.) 

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ea tiL3tory F 
::::::::::•::: ••:• 
New. Yo 
-.:: ::. - - - -::••,: 
6. Required procedures for 
delegation described? 
Not applicable Yes, substantial detail 
— 
Yes, substantial detail Yes, substantial detail 
7. Recognition of 
Surrogates for Consumers 
Yes, guardian, or adult 
designated by consumer and 
who is able and willing to 
assist in making choices 
concerning the services the 
consumer is to receive and to 
carry out the consumer's 
responsibility in the exempt 
program. [§3622(7)] 
Not addressed nor part of the 
criteria for delegation. 
Yes, family member or 
significant other. [§218, Bd 
of Nursing regs] 
Yes, authorized 
representative, i.e., person 
authorized to provide 
informed consent for health 
care on behalf of a patient 
who is not competent to 
consent. Must be a member 
of classes of person defined 
in RCWA 7.70.065 (spouse, 
adult children, parents, adult 
siblings). [WAC 246-840920 
(1996)] 
8. Role of Consumer in 
Delegation 
Individual must be given 
notice of eligibility and 
availability of consumer-
directed personal assistance 
program. If determined to be 
eligible after assessment by 
an RN and consumer elects 
No active role. No active role. RN must discuss delegation 
with consumer and obtain 
informed consent. [WAC 
246-840-930(9) and 246840-
940(1)] 
to participate, consumer 
controls recruiting, selecting, 
training, supervising and 
terminating workers. [N.Y. 
Pub. Health Law §3622] 
,Bourne: ABA Commission on Legal Problems of the Elderly 
Charles P. Sabatino - October 1996 

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D. Consensus Topics and Recommendations of Conference Participants 
Symposium participants were divided into four work groups to develop recommendations 
and to identify areas of consensus about delegation and exemption strategies. Participants were 
asked to assume that their group had the opportunity to design an "ideal" system and the 
authority to change any regulations that apply to professionals and/or service organizations. 
Participants were also asked to identify areas of consensus within the groups as well as areas of 
disagreement. Each group reported out to the full body during the final session of the 
symposium. Below are the highlights of each work group. 

Areas of Consensus among Participants 

Participants found several general areas in which there was consensus. These include the 
following areas: 

1. The consumer is central to all discussions and decisions made around long-term care 
and should have the opportunity and right to independence and autonomy in care decisions. 
2. Policy development affecting professional practice and consumer choice and directions 
should be designed with full participation of all stakeholders -- professionals, consumers, 
caregivers, and policymakers. 
3. Decisions about care plan options should involve the individual consumer as well as the 
professionals and caregivers who are working with the consumer. 
4. The fragmented funding for long-term care imposes barriers on consistent delegation 
and /or exemption policies affecting consumers of long-term care. 
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5. There should not be a federal standard for delegation. 
Areas of Disagreement among Participants 

1. Whether different standards regarding delegation were appropriate in different service 
settings. 
2. Whether a team should make decisions regarding delegation and the tasks to be 
delegated or whether decisions should made on the authority of one person -- a nurse or a 
consumer, for example. 
3. Whether a list of tasks is the best way to limit or prescribe delegation. 
In general, there is disagreement between professionals and consumers regarding the 
extent to which consumers should "control" the decision to delegate tasks and the level of 
professional involvement necessary to assure quality and evaluate progress on a regular basis. 

Ideal Approaches to Delegation 

There were three discrete approaches to delegation designed by the five work groups. 
Each work group had slightly different details and assumptions in its approach, but in general the 
approaches fell readily into the three groups described below. 

1. Exemptions and site-specific delegation 
This approach uses a combination of a "blanket" exemption and a delegation policy. 
Exemptions from any delegation act would be automatic for the family and friends of consumers 
as well as any personal attendant the consumer hires. Delegation, however, should be an available 
service option in all facility settings and within professional service organizations. When tasks are 
delegated, the nurse or other professional delegator would assess the consumer's situation, 
delegate any function that they believe appropriate and determine how much, if any, supervision is 

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required on an ongoing basis. In delegating tasks, the consumer is trained and must be competent 
to perform delegated tasks. If this criteria is met, the nurse or other delegator would not be liable 
for problems which arise as a result of the delegation. 

2. Right to least restrictive living options 
The second approach does not address delegation per se. Rather it suggests that the state 
adopt a policy for long-term care which ensures that each individual consumer has a right to live 
within the least restrictive living environment possible and to be independent in his or her 
functioning. This general policy would support a number of decisions on the part of the consumer 
including the extent to which he or she wants to be involved in receiving care from a professional 
or wants to perform tasks himself/herself or delegate to others. In order to foster this mission 
statement, participants suggested that the funding for needed services and support would follow 
the individual consumer and not be related to the environment or setting in which they live or 
receive services. Participants also envisioned a system with specifics designed by all stakeholders 
in long-term care: nurses, pharmacists, consumers, physicians, caregivers, etc. 

3. Delegation standards. 
The third approach relies more on "traditional" delegation models. In this model, as in 
practice in many parts of the country today, delegation is negotiated between the professional and 
the consumer. Delegation decisions would be based upon the extent to which the consumer 
and/or designee demonstrates competence in performing delegated tasks. Critical judgment 
functions such as assessment and evaluation could not be delegated. This group also agreed that 
delegation always involves teaching -- but teaching does not always involve delegation. And, 
finally this group (and others) strongly recommended that delegation activities be covered by any 
third-party funding available for services needed by the consumer. 

General Recommendations 

Because of the diversity of the symposium participants, a specific set of recommendations 

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around which there was a consensus did not emerge. However, there were general themes 
around which recommendations could be articulated. These include: 

1. The fragmentation of funding presents problems in long-term care and states should work 
to combine funding from the various sources into one funding pool in order to ensure 
continuity of care and policy. Service dollars should follow the individual consumer 
rather than be articulated by and tied to different funding sources. 
2. Funding from third party sources should be available to support the delegation of tasks 
process -- evaluation, education, assessment, and monitoring 
3. Nurses or other delegators should be free from liability associated with negative outcomes 
resulting from delegation, provided they have performed the delegation correctly. 
4. States should assume some responsibility for consumer protection in the area of personal 
attendants and assistants through the development of workers' registries and the 
facilitation of criminal background checks. 
5. Policies and practices towards delegation should be applicable to all settings. However, 
the implementation of these policies and practices could vary according to setting. 
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III. SURVEY OF STATE BOARDS OF NURSING 
As participants in the Symposium's planning committee, The National Council of State 
Boards of Nursing agreed to conduct a brief survey. This survey was designed to take a 
snapshot of activity related to delegation among state Boards over the last two years. It was 
administered via Internet in September 

Do states address delegation? 

1996. Forty-seven of the 61 state Number Percent 
Language regarding delegation is 
Boards responded, resulting in a 77 included in State's Nurse Practice Act 28 60 
percent response rate. Nearly all states, Language regarding delegation is 
addressed by rules and regulation 34 72 
94 percent of those responding, have Language regarding delegation is 
addressed by other forms of guidance 31 66 
language specifically addressing 
States that use one or more of these 
delegation in their Nurse Practice Acts, 
approaches to address delegation* 44 94 
n=47 
regulations, and/or other guidance they 

* Numbers do not add up because states use multiple 
produce. 

approaches. 
Findings indicate that Boards are very active on issues relating to delegation; although, 
lacking a baseline against which the survey findings can be compared, it is difficult to set the 
level of activity in historical context. Of the 47 Boards responding to the survey, 30 (64 percent) 
report that changes are planned or have been made over the last two years regarding the 
legislation, regulation, or other guidance relating to delegation. Of those states whose 
legislation, regulation, or other guidelines address delegation, 24 (55 percent) have experienced 
changes in the last two years. Six of those states made changes to the act itself, 17 made changes 

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to their rules and regulations, and 

How are states changing delegation practice? 12 made changes to other 
States that made changes to Nurse 
Number Percent resources providing guidance on 
Practice Acts in the last two years 6 13 
delegation. Thirty-two percent of 
States that made changes to rules and 
regulations in the last two years 17 36 Boards are aware of planned 
States that made changes to other 
forms of guidance in the last two years 12 26 
changes that will affect the ability 
States that are aware of planned 15 32 of unlicensed personnel to 
changes 
States that have changed in the last two 
perform nursing tasks. 
years or are planning changes* 30 64 The reported level of 
n=47 
planned changes may be due to an 

increased recognition of issues

* Numbers do not add up because states use multiple 
approaches. 
associated with unlicensed 
personnel who provide services in the community. Eighty-one percent of Boards reported that 
such issues have been raised and discussed in Boards over the last two years. 

It appears that few Boards formally recognize the relevance of differences among service 
settings in their regulation of delegation activities. 
Only six states (13 percent) interpret delegation 
differently for services provided in home and 
community-based settings than for those provided in 
hospital or other settings. 

On the other hand, Boards are more likely to 

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recognize a responsibility for non-nurses who perform nursing tasks. Twenty-one percent have 

the authority to monitor or regulate unlicensed personnel providing services in the community.

r 

Other states, however, have an indirect authority through regulating the person who is doing the 
delegation. 

This snapshot of activity related to delegation represents the first attempt to evaluate state 
practices on a national, comparative scale. Previous research (most notably, Kane et al, 1995) has 
evaluated only subsets of states. However, due to the brevity of this survey, it provides only a 
rough indication of the level and types of activities that have taken place over the last two years. 
Future research could usefully focus on providing more detail on the nature of guidance issued by 
Boards; on the direction of change (whether changes liberalize existing practice or regulate it 
more tightly); and on the types of issues relating to delegation that are dealt with by boards. 

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IV. NATIONAL STAKEHOLDER ASSOCIATION 
POSITIONS ON DELEGATION 
A. Americans with Disabilities Attendant Programs Today (ADAPT) 
When Are Medical Tasks Not Medical Tasks? A Call for Health Maintenance Services 
from Institutions to the Community! 

The current federal funding for health care services, created over thirty years ago, was 
designed to provide services in acute and/or institutional settings. 

However, the changing demographics of our country and advances in rehabilitation 
techniques and medical technology have reshaped the type of services needed and desired. 
Children born with disabilities are now living to adulthood. Traumatically disabled young adults 
who, not so long ago would have died, now live a normal life-span. The aging of America has 
meant more individuals acquiring disabilities later in life who need health and support services. 
The current health care debate, calls for Medicaid and Medicare reform, the rise of physician-
assisted suicides, are all in reality a backhanded recognition of these dramatic changes. 

These growing numbers of people with disabilities, old and young, are now demanding 
medical/health and support services in home and community settings. Institutional placement is 
no longer an option people accept without question. People want personal attendant services. 

Personal attendant services (PAS) are defined as those health and support services, 
delivered in home and community settings, that assist a person with a mental and/or physical 
disability, regardless of age, in accomplishing activities of daily living, instrumental activities of 
daily living and health maintenance activities. Health maintenance activities are those, now 
defined as medical tasks, that can be done by or delegated to a qualified unlicensed personal 
attendant. 

These demands for personal attendant services will require a rethinking of the 
philosophical underpinnings of our current long-term service delivery system. 

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First the system must recognize that long-term services should be delivered in the home 
and community. This means health services that were once only delivered to people with mental 
and physical disabilities in hospitals and congregate facilities must now be provided in home and 
community settings, wherever the person needs them. 

A home and community support system requires flexibility to meet the varied needs of 
people of all ages and disabilities. It requires that the delivery of these services be done as non-
medically and as unobtrusively as possible. People are questioning the "medical model" approach 
and the role the health professional has in that model. 

In the current "medical model" system of service delivery, individuals are passive players 
who rely on health professionals for guidance and often for permission. In return, we as patients, 
are offered the hope of cure or some level of fixing. The balance of control lies with health 
professionals providing health and support services, rather than with the person requiring these 
services. There has only been token acknowledgment that the person receiving the services has 
anything to contribute to their own care. 

People with disabilities of all ages are demanding more choice and control in these health 
and support services. The level of satisfaction in long-term services can be directly related to how 
much choice and control an individual has in their service delivery options. 

As more and more individuals receiving health and support services gain more choice and 
control, a contentious debate is growing around the role of health professionals in this new 
system. 

The major point of controversy between health professionals and the disability community 
arises when tasks now defined as "medical" are delivered in concert with non-medical support 
services in home and community settings. People with disabilities want these services delivered 
effectively and with as little medical intrusion as possible. 

However, the medical community looks at these services differently than people with 
disabilities do. The debate over de-medicalization of health and support services raises the 
following questions: 

Which tasks are medical? 

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• Who should provide which services? 
• What level of skill is needed to deliver services? 
• Who is in control of the services? 
• Who makes the decision as to what degree of risk is acceptable? 
• Who is ultimately liable for mistakes and abuses? 
There is a critical need to distinguish between "medical tasks" that need to be provided by 
or under the direct supervision of a health professional and "health maintenance tasks" which can 
be done by or delegated to a qualified unlicensed personal attendant. 

Moving the locus of control from health professionals to the users of health and support 
services in home and community settings will have significant impact on whether any specific task 
is defined as medical or a health maintenance one. 

These distinction between "medical" and "health maintenance" tasks should take account 
of the difference between short term acute illness, institutional placement and long-term 
maintenance needs. 

The setting in which a task is provided has a major impact, not only on the way we define 
the task, but also on who and what level of skill that person needs to perform the task. A task 
performed in a nursing home, ICF-MR facility or hospital may be defined as medical while the 
exact same task performed in a person's home and community may be defined as a health 
maintenance task. The fact that the person is receiving health services in a non-institutional 
setting fundamentally makes them different than those in hospitals, ICF-MR facilities and nursing 
homes. The locus of control shifts to the person with a disability when health and support 
services are provide in the home and community. 

When we distinguish between "medical" and health maintenance tasks, it allows us to 
think differently about the delivery of long-term services in the home and community. The focus 
would be on people with disabilities, living in the home and community, needing health 
maintenance and support services rather than being seen as people who are sick or broken in need 
of "medical" services and professional fixing. The distinction focuses on our needs as people to 
become as functional as possible rather than as "patients" needing to be cared for and cured. 

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Health maintenance tasks include not only those tasks delegated by a health professional 
to an unlicensed personal attendant, but also a category of tasks that need no health professional 
involvement. These are not activities of daily living in the traditional sense nor are they medical 
tasks. Intermittent catherteization, bowel programs and tube feeding are just a few examples. 

These are tasks that are a routine on-going part of the lives of many people with 
disabilities and their families. These people are not "sick". Their health is "stable and 
predictable" and will not suddenly change. Provision of these tasks is essential for the person to 
live in the home and community but does not necessarily involve health professionals. Currently 
many of the tasks are defined as medical tasks. 

Factors can be identified that would allow the individual (guardian or family member in the 
case of children under 18 years) to be in total control of the tasks that are performed by a 
qualified personal attendant. 

These could include: the choice of the consumer of services to direct services, level of 
experience of the personal attendant, the setting in which the task is being provided, and the 
nature of the task. Priority should always be given to the choices of the individual receiving the 
health and support services. 

Concerns by the health professional and home health community about health and safety 
of "vulnerable" individuals are often cited as explanations for the system as it is today. Protection 
of some individuals from abuse and neglect has led to a blanket system that doesn't give the 
recipient any choices to accept a level of risk that is necessary to live in the community. 
Ironically, we seem to be building an "institution without walls" mentality in the community 
because of liability concerns. 

The fear of being sued, the concern about liability, is a more important factor than health 
concerns in explaining some of our over-medicalized, over-regulated home and community-based 
long-term service system. This fear continues even though in states where unlicensed personal 
attendants have been performing health maintenance tasks for years, there have been no reported 
abuses that have led to major legal actions. 

The growing number of people with complex support needs challenges us to develop a 

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home and community services system that has the flexibility to allow individuals to make choices. 
Risk management models must be instituted that give individuals with disabilities the ability to 
control their services and take acceptable risks. Health professionals and home health providers 
must work with the disability community to wort Oat accesiable alternatives to the current 

system. 

There is not total unanimity in the disability and older communities on all these issues. 
The differences expressed are ones of degree. Should there be any health professional 
involvement in the delivery of PAS? Are we setting ourselves up for massive complaints of abuse 
and neglect? What is the balance between no health professional involvement and medical 
intrusiveness? Are we in danger of winning the philosophical war over the non-medical nature of 
our service needs, and then potentially losing the dollars needed to fund this system because we 
have cut ourselves off from the strong medical lobby which got the money in the first place? 

There are no easy answers. As resources become scarce, it will be necessary to deliver 
home and community long-term services differently. The design must come from the disability 
community, working with health professionals and home and community service providers on an 
equal basis. PAS must mean personal attendant services not physician assisted suicide. 

FREE OUR PEOPLE! 

Bob Kailca Tel: 512/442-0252 
ADAPT of Texas Fax: 512/442-0522 
1319 Lamar Square Drive, Suite 101 E-mail: Txadapt@msn.com 
Austin, TX 78704 adapt @austin.com 

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B. The American Nurses Association (ANA) 
Registered Nurse Utilization of Unlicensed Assistive Personnel 

Summary: 

The American Nurses Association (ANA) recognizes that unlicensed assistive personnel 
provide support services to the RN which are required for the registered nurse to provide nursing 
care in the health care settings of today. 

The current changes in the health care environment have and will continue to alter the 
scope of nursing practice and its relationship to the activities delegated to unlicensed assistive 
personnel (UAP). The concern is that in virtually all health care settings, UAPs are 
inappropriately performing functions which are within the legal practice of nursing. This is a 
violation of state nursing practice acts and a threat to public safety. Today, it is the nurse who 
must have a clear definition of what constitutes the scope of practice with the reconfiguration of 
practice settings, delivery sites and staff composition. Professional guidelines must be established 
to support the nurse in working effectively and collaboratively with other health care professionals 
and administrators in developing appropriate roles, job descriptions and responsibilities for UAPs. 

The purpose of this position statement is to delineate ANA's beliefs about the utilization 
of unlicensed assistive personnel in assisting in the provision of direct and indirect patient care 
under the direction of a registered nurse. 

Unlicensed Assistive Personnel 

The term unlicensed assistive personnel applies to an unlicensed individual who is trained 
to function in an assistive role to the licensed nurse in the provision of patient/client activities as 
delegated by the nurse. The activities can generally be categorized as either direct or indirect 
care. 

Direct patient care activities are delegated by the registered nurse and assist the 
patient/client in meeting basic human needs. This includes activities related to feeding, drinking, 

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positioning, ambulating, grooming, toileting, dressing and socializing and may involve the 
collecting, reporting, and documentation of data related to these activities. 

Indirect patient care activities focus on maintaining the environment and systems in which 
nursing care is delivered and only incidently involve direct patient contact. These activities assist 
in providing a clean, efficient, and safe patient care environment and typically encompass 
categories such as housekeeping and transporting, clerical, stocking, and maintenance supplies. 

Utilization 

Monitoring the regulation, education, and utilization of unlicensed assistive personnel to 
the registered nurse has been ongoing since the early 1950's. While the time frames and 
environmental factors that influence policy may have changed, the underlying principles have 
remained consistent: 

• IT IS THE NURSING PROFESSION that determines the scope of nursing 
practice; 
• IT IS THE NURSING PROFESSION that defines and supervises the education, 
training, and utilization for any unlicensed assistant roles involved in providing 
direct patient care; 
• IT IS THE RN who is responsible and accountable for the provision of nursing 
practice; 
• IT IS THE RN who supervises and determines the appropriate utilization of 
any unlicensed assistant involved in providing direct patient care; and 
• IT IS THE PURPOSE of unlicensed assistive personnel to enable the professional 
nurse to provide nursing care for the patient. 
It is the assumption of the ANA that the provision of safe, accessible and affordable 
nursing care for the public may include the appropriate utilization of unlicensed assistive personnel 
and that the changes in the health care environment have and will continue to alter the activities 
delegated to UAPs. 

Therefore, it is the responsibility of the nursing profession to establish and the individual 

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ri 


nurse to implement the standards for the practice and utilization of unlicensed assistive personnel 

involved in assisting the nurse in the direct patient care activities. This is accomplished through 

national standards of practice and the definitions of nursing in state nursing practice acts. In order 

to understand the roles and responsibilities between the RN and the UAP the ANA recognizes 

that the key to understanding is the clarification of professional nursing care delivery and the 

activities that can be delegated within the domain of nursing. The act of delegation is defined as 

"the transfer of responsibility for the performance of an activity from one person to another while 

retaining accountability for the outcome." 

In delegating, it is the RN who uses professional judgment to determine the appropriate 
activities to delegate. The determination is based on the concept of protection of the public and 
includes consideration of the needs of patients, the education and training of the nursing and 
assistive staff, the extent of supervision required, and the staff workload. Any nursing 
intervention that requires independent, specialized, nursing knowledge, skill, or judgment cannot 

r 1 

be delegated. 

Effective Date: December 11, 1992 

Status: New Position Statement 

Originated by: Congress on Nursing Economics, Congress of 
Nursing Practice 

Adopted by: ANA Board of Directors 


Related Past Action:1) Scope of Nursing Practice, House of Delegates, 1987 
2) ANA Opposition to the AMA proposal to Create Registered 
Care Technologists, House of Delegates, 1988. 

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Attachment I: 
Definitions Related to ANA 1992 
Position Statements on Unlicensed Assistive Personnel 

The ANA Task Force on Unlicensed Assistive Personnel developed the following definitions to 

clarify the ANA position statements on the role of the Registered Nurse in working with 

unlicensed assistive personnel. These definitions reflect a review of current regulatory, legal 
practice, and professional terminology and are intended to be used only in the context of these 
position statements. 

1. Unlicensed Assistive Personnel: 
An unlicensed individual who is trained to function in an assistive role to the licensed registered 
nurse in the provision of patient/client care activities as delegated by the nurse. The term 
includes, but is not limited to nurses aides, orderlies, assistants, attendants, or technicians. 

2. Technician: 
A technician is a skilled worker who has specialized training or education in a specific area, 
preferably with a technological interface. If the role provides direct care or supports the provision 
of direct care (Monitor tech, ER tech, GI tech) it should be under the supervision of a Registered 
Nurse. 

3. Direct Patient Care Activities: 
Direct patient care activities assist the patient/client in meeting basic human needs within the 
institution, at home or other health care settings. This includes activities such as assisting the 
patient with feeding, drinking, ambulating, grooming, toileting, dressing, and socializing. It may 
involve the collecting, reporting, and documentation of data related to the above activities. This 
data is reported to the RN who uses the information to make a clinical judgment about patient 
care. Delegated activities to the UAP do not include health counseling, teaching or require 
independent, specialized nursing knowledge, skill or judgment*. 

4. Indirect Patient Care Activities: 
Indirect patient care activities are necessary to support the patient and their environment, and only 

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incidentally involve direct patient contact. These activities assist in providing a clean, efficient, 
and safe patient care milieu and typically encompass chore services, companion care, 
housekeeping, transporting, clerical, stocking, and maintenance tasks. 

5. Delegation: 
The transfer of responsibility for the performance of an activity from one individual to another 
while retaining accountability for the outcome. Example: the nurse, in delegating an activity to an 
unlicensed individual, transfers the responsibility for the performance of the activity but retains 
professional accountability for the overall care. 

6. Assignment: 
The downward or lateral transfer of both the responsibility and accountability of an activity from 
one individual to another. The lateral or downward transfer must be made to an individual of 
skill, knowledge and judgment. The activity must be within the individual's scope of practice. 

7. Supervision: 
The active process of directing, guiding and influencing the outcome of an individual's 
performance of an activity. Supervision is generally categorized as on-site (the nurse being 
physically present or immediately available while the activity is being performed) or off-site (the 
nurse has the ability to provide direction through various means of written and verbal 
communications). 

*Judgment as it relates to the above definitions is defined as the intellectual process that a nurse 
exercises in forming an opinion and reaching a clinical decision based upon an analysis of the 
evidence or data. 

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C. Developmental Disabilities Nurses Association 
Mission Statement: As nurses in the specialized field of Developmental Disabilities, our mission 
is to continually develop our expertise in order to assure the highest quality of life to the people 
we serve throughout their lifespan. 

At this time, we in the Developmental Disabilities Nurses Association (DDNA) are in the process 
of developing a position statement on delegation. In preparation for this endeavor, the following 
concepts and views will considered: 

Nurses must know the legal scope of nursing practice within the state nurse practice act 
and any other regulations that are applicable. Additionally, as nurses with a specialized area of 
practice, we are professionally and ethically obligated to promote and support standards of 
practice in our specialty. These standards define our professional accountability to the public and 
the individual outcomes for which they are responsible. They also provide a direction and 
framework for the evaluation of our practice. 

The purpose of the Standards of Developmental Disabilities Nursing Practice is to fulfill 
the profession's obligation to outline and delineate developmental disabilities nursing practice in 
order to determine levels of practice to achieve excellence in practice. (DDNA Standards of 
Practice, 1995). 

The practice of developmental disabilities nursing endorses the promotion of wellness and 
normalization in the provision of services to individuals with developmental disabilities. The 
nursing profession focuses primarily on interventions which maximize the psychosocial, physical, 
affective, cognitive, and developmental strengths of individuals and their families. 

In 1984, Congress enacted the Developmental Disabilities Act (PL 98-527) that stated that 
states must work to promote the values of independence, integration, and productivity for all 
citizens with developmental disabilities. 

Capacity does not equal competency. Most people with developmental disabilities are 
capable of at least some informed decisions. This capacity may vary over time and may vary 

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across different decisions. Therefore, except for those who are most profoundly impaired, the 
evaluation for capacity needs to be decision specific. 

Society is now viewing the continual growth of a set of values with regard to individuals 
with developmental disabilities. With any aspect of a growing and changing system, standards 
and credentialing need to ultimately reflect changes in values. Nurses can be facilitators rather 
than inhibitors for this interactive evolutionary process for safe and respectful change. 

As nurses we must ensure that adequate and sensitive services and flexible resources are 
cost-effective, the least intrusive, most normative as possible and are provided by qualified, 
trained personnel to meet individual needs and preferences. 

Although living arrangements with less than full-time supervision permit people to enjoy 
their greatest possible liberty, it also reduces monitoring of their well-being, thus ensuring safety 
and well-being is a growing challenge. 

Differing agendas and motives and conflicts among the stakeholders are inherent due to 
the nature of the work, requiring all stakeholders to be reliable, truthful, and scrupulous. 

In human services there are a range of ethical dilemmas in which two desirable ends are in 
conflict, such as the drive to ensure an individual's autonomy and the pressure to "do no or 
protect from harm." 

Historically, in this field there has been a "tension" between safety and risk, responsibility, 
and choice. The value of individual choice and empowerment must be balanced with the 
responsibility to protect individuals from risks they may not comprehend due to limited cognitive 
ability or life experiences. 

No one lives risk free, for each of us "safety" is defined along a scale with a wide variance 
for risk tolerance. 

Responding to the challenges of ensuring safety in an often dispersed service delivery 
system requires new ways of thinking about quality assurance and related quality-enhancement 
systems. While quality assurance will continue to focus attention on basic health and safety, it is 
increasingly being defined around quality-of-life outcomes, with health and safety being just one 
component. 

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Three methods used to safeguard health, safety, and basic comfort or well-being of 
persons with developmental disabilities include the education of family, staff, and other personal 
assistants; provision of technical assistance and implementation of a system for monitoring. 

Well-defined standards and well-trained quality assurance monitors and other safeguards 
are essential for the balance of quality of care and quality of life. 

The development of a Position Statement of Delegation must consider these key concepts 
and views to promote safety and well-being and quality of life for individuals with developmental 
disabilities. 

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D. National Association for Home Care 
The statement has been contributed by the Home Care Aide Association of America, an affiliate 
of the National Association for Home Care. 

Expanding Roles: Delegating Tasks to Home Care Aides 

Should home care aides (HCAs) be permitted to administer medication? Adjust an IV 
flow rate? Monitor oxygen? Change a colostomy bag? Provide decubitus care? Change a 
simple dressing? Across the country HCAs are providing these services and performing other 
tasks that traditionally have been considered within the scope of nursing practice. Fueled by an 
aging population, hasty patient discharges, and an increasingly cost-focused health care 
environment, the home care industry has grown rapidly. Most notable of these trends, however, 
is the continued and projected growth in the number of paraprofessionals. The US Department 
of Labor projections indicate a growth rate of more than 100% in two home care 
paraprofessional positions. HCAs who perform a variety of housekeeping tasks for home care 
patients will increase from 179,000 positions in 1994 to 391,000 in 2005 (a 119% increase). 
HCAs who provide personal and physical care will see an increase from 420,000 in 1994 to 
848,000 in 2005 (a 102% increase). 

As the HCA ranks have expanded, so have their roles. The role of the paraprofessional 
caregiver has grown in some settings beyond the assistive realm into areas of significantly more 
independence. It is no longer unusual for HCAs to provide dressing and simple wound care, 
routine catheter care and irrigation, and administration of medication. These tasks are all being 
delegated to HCAs in many states. The expanding scope of tasks for HCAs raises challenges 
and dilemmas for home care agencies, nurses, HCAs, and home care recipients. 

Agencies are under great pressure to have aides provide care beyond basic activities of 
daily living (ADLs). As resources to pay for health care services shrink and costs increase, 
health care providers, insurers, and government entities seek less-expensive means to provide 
care. And people with disabilities have pushed for a more liberal and less medical view of the 

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scope of work that can safely be provided by paraprofessional caregivers. 

EXPANDING ROLES 

For the past year the Home Care Aide Association of America (HCAAA), an affiliate of 
the National Association for Home Care (NAHC), has examined issues related to HCAs' 
expanding role and scope of practice. In response to numerous requests for guidance from 
members, HCAAA's Supervision and Delegation Task Force, comprised of home care nurses 
and administrators, examined delegation issues to develop a position on suitable tasks for 
appropriately trained HCAs. 

The National Association for Home Care (NAHC) established the Home Care Aide 
Association of America (HCAAA) in 1990 to provide a forum for the discussion of issues 
related to the work of paraprofessionals in home care. Home care aide (HCA) is one of the 
fastest growing occupations in the country. As the HCA ranks have expanded, so have their 
roles. HCAAA has examined closely issues 
related to the expanding role and scope of 

This issue analysis is designed to assist

task of HCAs in an effort to provide guidance 

agencies in examining the myriad issues 
to its members. related to expanding the tasks of the HCAs, 
responding to requests from managed care

HCAAA found that policies and 

companies, and addressing state or federal 
practices governing HCA duties are changing legislative initiatives. Despite urging from 
some agencies for a concrete list of

rapidly. The US Department of Health and 

acceptable HCA tasks, HCAAA has 
Human Services provided funding for concluded that the broad and diverse range 
of practices at the state and agency level, the

research on supervision and delegation. State 

diversity in client needs and conditions, and 
Nurse Practice Acts are being revised to variations in individual aides' abilities make 
it impractical to present a list of activities

expand tasks that nurses may delegate to 

that can be delegated. HCAAA believes that 
aides. Home care agencies report pressure an agency's decision to permit delegation of 
tasks to aides should be based on assessment 

from payor sources to expand the tasks HCAs 

of a number of variables, including existing 
currently provide. Home care agencies are laws and regulations, the complexity of 
client needs and stability, and the training

forming coalitions to develop consensus on 

and clinical competence of the HCA. 

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what is and is not appropriate. People with disabilities are seeking ways to expand the tasks that 
can be delegated as well as supervisory and training requirements. 

Delegation of tasks to HCAs is governed primarily by state Nurse Practice Acts. These 
laws vary by state: some have fairly strict requirements while others are broadly drawn, leaving 
much to the discretion of registered nurses. Although some states have developed or are 
developing training and competency standards for aides, few rules and regulations provide a 
solid framework for agencies. 

In 1995 HCAAA surveyed NAHC members to assess current agency practices in 
delegating tasks to HCAs that are traditionally considered beyond the aides' scope of tasks. The 
survey sought information in a broad range of clinical areas from monitoring to medication 
administration and invasive procedures. 

More than half of respondents indicated that HCAs in their state or region were being 
assigned nontraditional tasks. More than 70% expected funding sources -- primarily managed 
care companies -- to request HCAs to perform nontraditional tasks. Most respondents believed 
expansion of tasks was appropriate for HCAs with appropriate training. 

HCAAA has concluded that the broad and diverse range of practices at the state and 
agency level, the diversity in client needs and conditions, and variations in individual aides' 
abilities make it impractical to define a list of activities that can be delegated. There is 
insufficient information to draw hard conclusions about ideal approaches and little information 
about the consequences. 

EXAMINING THE ISSUES 

Two research reports have examined the implications of more extensive delegation of 
nursing tasks to unlicensed paraprofessionals and have reached similar conclusions. 

"Liability Issues Affecting Consumer Directed Personal Assistance Services," published 
in 1995 by the World Institute on Disability and the American Bar Association Commission on 
Legal Problems of the Elderly, closely examines 50 state nurse practice acts and delegations 
practices in many states. The report states: 

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"Under nurse delegation, our experience is insufficient to draw any hard and fast 
conclusions about optimum approaches, legal ramifications. Existing law is quite varied and 
vague . . . If any one theme has been consistent in home and community-based services, it is the 
reality that one size does not fit all. Detailed standards and procedures that must be applied to 
all consumers easily miss that reality." 

A report published by the Public Policy Institute of the American Association of Retired 
Persons (1995) examines a range of delegation issues. The report, "Delegation of Nursing 
Activities: Implications for Patterns of Long-Term Care," was written under contract by the 
University of Minnesota's National Long-Term Care Resource Center. The report reviews nurse 
practice statutes, related regulations, and customary professional practices to examine the 
circumstances by which nurses can delegate nursing tasks to unlicensed people. The goal of the 
report was to explore nurses' potential for playing an enhanced role as teachers and delegators of 
care to unlicensed persons. The report includes a case study of opinions about nurse delegation. 

In support of nurse delegation, the following statements were made: "Delegation offers a 
way for nurses to assist patients to live in the settings of their choice because of general cost 
lowering"; "Delegation promotes equity between people with families (...give free care outside 
of nurse delegation prohibitions) and those who do not have families"; "Delegation offers nurses 
greater opportunities for leadership and use of their skills." 

Views in opposition to expanded delegation included fears that "permission to delegate 
would glide into requirements to delegate"; concerns that "nurses' education about the why, 
how, and what of delegation was insufficient"; skepticism about the claims to efficiency made 
by proponents of delegation; liability concerns; concerns about risks of poor quality care. 

The report concludes that nurse delegation is a feasible and promising approach to 
providing cost-effective, long-term care in community-based settings, including group 
residential settings. 

IMPLICATIONS FOR AGENCIES 

The home care industry is in a unique position in that it routinely teaches family 

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members, friends, and neighbors to perform sophisticated and complex tasks to promote client 
independence. At the same time, agencies employ paraprofessional caregivers whose training 
and supervision become the agency's direct responsibility and liability. Some agencies are in 
contractual arrangements whereby another entity actually employs a paraprofessional caregiver 
with whom the agency staff works. Agencies must consider that they may be held liable for 
actions taken by aides who are inadequately trained or supervised. Within the context of 
delegation there are two directions of liability which agencies must understand and consider. 

Under the doctrine of respondeat superior the agency is responsible for all the actions its 
employees take. Accordingly, negligence by an aide in the performance of delegated tasks leads 
to liability for the agency. The nurse who has delegated the responsibilities retains liability for 
the performance of the aide. This could mean personal professional liability. Liability in both 
of these instances can mean direct financial consequences as well as loss of license. As well, 
individual nurses whom the agency employs must consider the impact of inappropriate 
delegation, or improperly performed tasks, on their own licensure status. 

Most Nurse Practice Acts are broad in their definition of what constitutes the practice of 
nursing, leaving nurses uncertain of the standards they must meet. Nurses make critical 
delegation decisions that must be consistent with safe and effective nursing practice. As the 
nurses making these decisions will necessarily consider the appropriate training of aides, 
agencies must consider whether nurses have the skill to delegate. 

A recent paper by the National Council of State Boards of Nursing (NCSBN), 
"Delegation: Concepts and Decision-Making Process," provides practical guidelines to direct the 
process for making decisions about delegation. NCSBN includes Five Rights of Delegation to 
facilitate decisions about delegation: 

• Right Task -- one that is delegable for a specific patient 
• Right Circumstances -- appropriate patient setting, available resources, and other relevant 
factors considered 
• Right Persons -- delegating the right task to the right person to be performed on the right 

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person 

• Right Direction/Communication -- clear, concise description of the tasks, including their 
objectives, limits, and expectations 
• Right Supervision -- appropriate monitoring, evaluation, intervention, as needed, and 
feedback. 
The paper lists a number of premises as the basis for delegation. The first is: "All 
decisions related to delegation of nursing tasks must be based on the fundamental principle of 
protection of the health, safety, and welfare of the public." 

Reimbursement issues are another concern for home care agencies. Often reimbursement 
is inadequate to cover the cost of essential training and supervision. Rates paid to home care 
agencies under Medicaid are often below the cost of providing care, which forces some home 
care agencies to subsidize patients. As the scope of tasks for aides expands, more extensive and 
costly training will be required. This cost will place an added burden on agencies. In addition, 
payors are demanding more for less, placing home care providers in a difficult situation. 

DIFFICULT DECISIONS 

Clearly, for home care agencies the primary concern is and must be the safety and wellbeing 
of the care recipient. However, every day home care agency staff must make difficult 
decisions concerning aide tasks with little guidance and under increased pressure for aides to do 
more. Established standards are minimal and are complicated by conflict among industry 
standards, federal and state governments, the nursing community, advocates, and people with 
disabilities, each of whom claims responsibility for determining appropriate standards in 
different circumstances. 

Although some agencies and communities have developed operationalized lists of tasks 
that can and cannot be provided by aides, the HCAAA Advisory Board has opted not to create 
such a list. This paper was developed to help agencies examine issues related to expanding the 
tasks of the aides employed by the agency, responding to requests from managed care 

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companies, and addressing state or federal legislative initiatives. 

HCAAA believes that an agency's decisions to permit delegation of specific tasks to specific 
aides should be based on assessment of a number of variables, including existing laws and 
regulations, the complexity of client needs and stability, and the training and clinical 
competence of the home care aide. 

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V. INFORMATIONAL RESOURCES 
American Nurses Association, Model practice act. Washington, DC: American Nurses 
Publishing, 64 pp., May 1996, $14.95. 

Burbach, Vicky, "Delegation in nursing". Issues, 15(3), 1994, Publisher: National Council of 
State Boards of Nursing, Inc., Chicago, IL. 

California Board of Registered Nursing, "Board adopts position statement on RN supervision of 
medical assistants." BRN Report , 8(3): 6, Winter 1994, Publisher: California Board of 
Registered Nursing, Sacramento, CA. 

California Board of Registered Nursing, "Board issues advisory statement on unlicensed 
assistive personnel." BRN Report, 8(3): 4-5, Winter 1994, Publisher: California Board of 
Registered Nursing, Sacramento, CA. 

Developmental Disabilities Nurses Association, Standards of Developmental Disabilities 
Nursing Practice, Eugene, OR: Developmental Disabilities Nurses Association, 1995. 

Harris, Marilyn D., "Competent, supervised, unlicensed personnel will contribute to 
high-quality, in-home health care." Home Healthcare Nurse, 11(6): 55-56, 1993, Publisher: J.B. 
Lippincott, Philadelphia, PA. 

Home Care Aide Association of America, Guiding principles _governing the delivery of 
long-term care. Washington, DC: National Association for Home Care, 2 pp. 

Kane, Rosalie A., Colleen M. 0' Connor, Mary Olsen Baker, Delegation of nursing activities: 
im care. Washington, DC: American Association of Retired 
Persons, 73 pp., Nov. 1995. 

Kafka, Bob, Stephanie Thomas, Discussion of the attendanttinfet'nal 
assistance services. Denver, CO: ADAPT, 30 pp., Sept. 1993. 

Lakin, K.C., "Persons with developmental disabilities: Mental retardation as an exemplar." In 

R.J. Newcomer & A. E. Benjamin (eds.), Indicators of Chronic Health_Conditions: Monitoring 
Community-Level Delivery Systims (pp. 99-135). Baltimore: Johns Hopkins University Press. 
1997. 
McAlvanah, Margaret F., "A guide to delegation." Pediatric Nursing, 15(4): 379, 
July-Aug.1989. 

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National Council of State Boards of Nursing, Inc., Model nursing practice act. Chicago, IL: 
National Council of State Boards of Nursing, Inc., 45 pp., August 1994, $11. 

National Council of State Boards of Nursing, Inc., Delegation: concepts and decision-making 
process. Chicago, IL:, National Council of State Boards of Nursing, Inc., 4 pp., 1995. 

National Council of State Boards of Nursing, Inc., Model nursing administrative rules. Chicago, 
IL: National Council of State Boards of Nursing, Inc., 77 pp., Aug. 1994, $12. 

Noon, Jody Ann. Legal issues in community-based care nursing practice, Portland, OR: Davis 
Wright Tremaine, 8 pp., 1994. 

Sabatino, Charles P, Simi Litvak. Liability issues affecting consumer-directed personal 

assistance services. Oakland, CA: World Institute on Disability and ABA Commission on Legal 
Problems of the Elderly. 166 pp., 1995, $20. Also published in Elder Law Journal, 4(2): 247


368. Urbana, IL: College of Law, University of Illinois at Urbana-Champaign, Fall 1996. 
Sundram, C.J. (ed.). Choice & Responsibility: Legal and Ethical Dilemmas in Services for 
Persons with Mental Disabilities. Albany, NY: New York State Commission on Quality of Care 
for the Mentally Disabled, 1994. 

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VI. APPENDIX 
Question and Answer Session: 
Issues Raised by the State Presentations 


This section presents some of the discussion from the question and answer session following the 
states' presentations. The text below is an edited transcript of the actual event, organized into 
themes. Speakers have not been identified because we were unable to do so with any reliability; 
an attempt has been made to keep the text as true to the event as possible while retaining 
coherence. 

Relevance of Service Setting and Acuity 

Q: I hear general reluctance to delegate in an acute care setting, but there are people who have 
acute care needs in the home setting. How do we handle it when a patient is sick and also has 
long-term care needs? 
A: All these states seemed to say acute care is off limits, except for Texas -- it seems to have 
broad delegation across all settings. Assistance with ADLs seems to be okay -- that seems to be 
an issue that people can embrace and feel pretty comfortable about. However, the health 
maintenance activities seem to be the gray area, such as medication administration related to 
injectables. What's medication administrations versus medication assistance? There seems to be 
a lot of disagreement over some of the skilled body issues, such as bowel and bladder, IVs and 
so forth. 
A: The setting rather than the level of disability or acuity is the most important thing in 
determining whether delegation is appropriate. The question is, is the combination between the 
individual themselves and the unlicensed person right? I think there's a reason somebody's in a 
hospital, a nursing home, or an ICF/MR facility that calls for a little bit more oversight -- though 
admittedly some people have been inappropriately placed, both in the community or in an 
institution. But mostly, regardless of a person's severity, if they're out in the community the 
combination of the setting and the individual should allow a focus on delegation. Although 
obviously, it's a case-by-case situation. 
A: Both people who are hospitalized and people using community-based long-term care are 
likely to have acute needs, but in both settings you can recognize and identify activities of daily 
living that are stable. And you may find that a person's condition is stable and everything is fine 
-- then the consumer has to be hospitalized for another situation. Though you may need to bring 
in a little more nursing at that poi:it, it doesn't mean that the other situation is no longer stable. 
The variability of people's conditions is my reason for keeping the nurse in the loop and for my 
concern about avoiding delegation by using other strategies. I think nurse delegation makes it 
easier to determine when a consumer's situation changes and is better in ensuring that a nurse is 

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accessible to address those needs. 

A: In Oregon, in the licensed facilities -- the foster care homes, residential care, and assisted 
living -- the assumption is that delegation is appropriate for the basic stable ADL care. But there 
are folks who are predictably unstable. They have a course in their disease, terminal care, where 
there are ups and downs; things are going to happen. We expect the nursing presence to be 
there. Consultation and assessment will determine the degree of delegation and the degree of 
frequency. But it is not our position that people with unstable conditions are unsuitable for 
delegation. Perhaps if they are really unstable and need a lot of nursing oversight. But there are 
a lot of people who really are not that unstable -- there's a predictable course to how their 
condition progresses. 
A: The other concern that we have is that the hospital industry thinks that delegation should 
occur in hospitals. Then you'll end up with one nurse for a 500-bed hospital -- where does that 
leave quality and safety? Although in Oregon delegation has worked well in the settings it's 
currently restricted to, there are concerns about whether or not it's a policy that should be 
applied to every setting. 
Cost of Delegation 

Q: The Texas folks stated that about 12 percent of the 73,000 people on the personal attendant 
services program would benefit from nursing delegation. You also stated the department 
decided they couldn't do it because of the costs associated with it. What do those estimated 
costs represent -- the cost of the nurse training the particular person or the cost of the 
assessment? What I'm getting at here is that if it wasn't a delegation situation, rather a transfer, 
like they do in New York, would those costs be manageable? Would they be reduced if you just 
acknowledge that a consumer is self directing, has the responsibility, and can teach their worker 
the tasks that are needed? 
A: The cost for this was based on the cost of the registered nurse doing an assessment and 
training the unlicensed person. So the cost that we would incur was based on having an RN 
supervisor for those individuals who needed to have delegation. I'm very interested in pursuing 
this other model. I think that might be a real way to do it. 
This other model is not a nurse delegation model. When the nurse assesses the client and 
determines that in this situation care can be provided by somebody else under the client's 
direction, the nurse isn't delegating to that care provider. So that's kind of important. 
Delegation is giving your authority to somebody else and supervising them and being 
accountable for that. It's just a little different mechanism. 

Q: Exactly what is it that costs in nurse delegation ? And doesn't the delegation process, or at 
least the process such as they have at Concepts of Independence, save a lot of money? 
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A: Once delegation has occurred, it costs about one-third as much, on a per hour basis, to 
provide care through a delegated setting. With more constant nursing monitoring, it would be 
more. It's all based on the desire of the client to be able to continue their own care and go from 
there. 
A: In New York the costs are minimal for the whole process. The consumer has to receive 
initial training and they usually get it as part of their discharge process or from their own 
experience with their disability. The consumer's familiarity with their condition is really what 
runs the program. They are the ones that make the decision on what is necessary for them and 
how it should be done. So once that process is complete, the costs do not change for someone 
who needs a high level service versus a more conventional personal care level service. 
A: In Texas adding a delegation function appears to add to the cost because you're actually 
expanding the services available in the Medicaid program. Under the personal care option, if 
you offered it to one, you offered it to everybody, which then potentially raises the cost. So, we 
toyed with the idea of a Medicaid waiver that would enable us to cap it at, say, 5,000 people, and 
control the potential costs. Most of the programs I've seen have been really fairly small. 
Surrogate Dcision-makers and Iformed Consent 

Q: How do you address the issue of surrogate decision makers? What about individuals who 
may want to direct their own care but may need some support: people with mental retardation, 
people with psychiatric disabilities, even older people who may be developing dementia? How 
does that play out in terms of the assessment, in terms of what the nurse determines, and from a 
legal standpoint? Presumably for many of these people, the guardianship process has not been 
adjudicated? So they are technically competent to make their own decisions. 
A: In New York the legislature provided for adult household members, guardians and family 
members to take on the responsibility. In the state consumer-directed program, it's really part of 
the Medicaid program, not a waiver but a mandated program. Every county must provide 
access to a program. As far as the people that are nonindependently self directing, each county 
must make their own determination, for that particular consumer. 
They would look at such things as whether the delegate has a track record with the consumer. Is 
this person participating in an organization like the Alzheimer's Association, or SKIP, or another 
organization in New York called PICK, or something like that which would help with the case 
management process, to make sure that family members stay there and does what they say they 
are going to do? During the initial process, the country may decide that extra nursing 
assessment visits are necessary to make sure that that consumer is capable of receiving the 
appropriate services through the direction of this surrogate. 

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The county is responsible to make sure that process goes through and as such there really hasn't 
been a problem with that. We've only begun to work with the county to set up guidelines. 
We've occasionally dealt with consumers who really rely upon family members and others to 
work with them to provide their services and it's really worked very well -- if the family holds 
together and is supportive. 

A: In Washington State we have an informed consent statute that says for delegation to occur, 
there must be written consent from the consumer who's receiving care. Then there is a hierarchy 
determining whether the surrogate is a family member, spouse, sibling, or a legal guardian. A 
problem that we've run into is that some people with developmental disabilities do not have 
family members, they do not have guardians, and they need this delegation. So our DD agency 
is looking at a limited guardianship for health care to get this delegation going. 
So that's what we see already as an issue, especially written form consent. For an individual 
who does not have family members or someone in that hierarchy, it's a difficult process, because 
it's clear in our statute that the registered nurse has to get informed consent and has to be sure 
that the client is a willing participant. If there's a question, the nurse won't delegate. The 
limited guardianship has become an issue because it appears to take away some consumer rights 
-- Is it really worth it? 

A: Let's just talk about the basic principles. If we go back to old public health nursing, for 
heaven sakes, nursing is a profession that has embraced working out in the community and 
helping neighbors. And I get frustrated, folks, when I hear the legal chains around the neck. In 
practice, the whole home health principle is one where if the consumer cannot direct the de facto 
surrogate, be they family or neighbors, then we step in to help that person stay at home. 
But it is also the responsibility of the licensed facility setting. Licensing bodies have the 
responsibility to keep people in the community and hold their providers accountable. So in 
Oregon the regulations for licensing foster homes, residential care facilities, and assisted living 
ensure access to nursing. If you do that, then the issue of "Do we have a true surrogate?" 
becomes much less of an issue. The issue of "Do we have true consumer direction?" becomes 
much less of an issue because our standards of practice have been established within the care 
setting as well as with the nurse. Let's not get hung up here saying if all the /'s aren't dotted and 
all the t's aren't crossed, we aren't going to do it. Because we end up denying availability of 
services to people who really need them. 

Risk Assessment 

Q: I'm concerned from the perspective of education. A lot has been said about balancing the 
risk and the choices and the responsibility. To what degree are the nurses and the 
clients/consumers being educated about risk assessment and decision-making models? I kept 
hearing the word judgment -- To what degree are we helping the consumers and the nurses judge 
risk? Is there a curriculum out there for the nurses and the consumers? 
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A: I think education may get too much into the process. We're talking about individuals with 
disabilities just trying to get a service delivery in a community. Though I agree that there needs 
to be some general education, the bottom line is that everybody is sort of like going through 
hoops, whistles, and everything else. 
I get very fearful of somebody coming in with an assessment tool to say whether I can or can't 
direct. I mean it really scares me because someone might be judging me on whether I speak well 
-- or, if I'm brain injured and I have a little bizarre behavior, is someone going to say that's not 
appropriate? It sounds like Washington is balancing whether they're going to take the legal 
rights away from somebody just to give them a service. Just think of that! It is almost absurd, 
really. To even think that we're going to be taking rights from somebody to give them a service 
to live in the community -- and we're not even talking about people living in private homes, 
these are people in group facilities. This exactly illustrates the problem I think we have in the 
whole delivery of home and community-based services. 

Nurse Education and Points of View 

Q: Isn't part of the education that is needed, education of nurses in how to delegate? 
A: Nurses need to recognize the potential of the people we are serving to actually direct their 
own care. I think in Oregon one of the reasons that there's not as much concern around the 
education from the disabilities community perspective is because there's been a chance to sit 
down at the table and really start to look at how roles need to change in order to better serve 
people. If consumers see a need for more information and education, we're going to demand it 
from the system. The majority of people in the program say "No, I really do know how to direct 
my own care and I'm comfortable with the risks that may be involved." One of the main 
reasons that the client-employed provider program continues to grow is because people are 
confident about being able to direct their own care -- I don't care if you're talking about an 83year-
old grandmother or 18-year-old quad, or somebody moving out into the community, out of 
an institution, where they've otherwise been labeled as mentally retarded. 
We need to grapple with those perceptions through broader and broader based discussions in our 
states, so that the barriers to communication and understandings can come down in the future. 
One of the things I'm optimistic about is that, over time, things are going to change. Those of us 
who grew up so that we're tired of having services provided for us, are going to maintain that 
perspective as we grow older. Arad, as the philosophy of the older generation changes because 
of having grown up with that intolerance for being done for, the environment through which the 
services are being provided will eventually change as well. 

A: What all the states here have in common is they brought together the key stakeholders to 
discuss these issues. The disability advocates were very involved. The departments of health, 
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nursing, boards of nursing, nurses associations, home care, were all involved. It's an interesting 
similarity across the states: the programs have been challenged to address consumerism. 

A: There's a lot of concern about nurses being out of the loop if it's decided that nursing is only 
lists of tasks. Well nursing is a process. It's a profession of judgment. Now I agree that there 
are nurses that the disabled community loves to hate, who are very attached to the whole idea of 
clinical nursing. These people haven't been out in the community and can't understand how to 
adapt to people's living situations because they just don't have that kind of experience. 
But there's another whole body of nursing that's very in tune with that. They understand that not 
every situation requires a nurse to visit every 60 days. But in other situations that does belong. I 
think therein lies the problem. The problem isn't one of this task or that task. The problem is 
one of providing a community where persons are able to make choices. They're able to choose 
for me to come and help them; or choose not -- that and they're able to do it based on good 
information. 

A: I just want to share what's going on for me in the last 24 hours. When I hear the consumers 
get up and what I consider the clients get up and talk about wanting independence and control, I 
nod my head and I have an "oho" and remember yes, that's where it should lie. On the other 
hand, what I struggle with -- maybe some of this is because I'm a pediatric nurse -- is that what I 
see is that when, for example, kids aren't doing clean catheterization with the proper technique, I 
am seeing some bad outcomes. I have three teenagers right now who have lost their kidneys and 
who are on dialysis or have had to have transplant. Then when some of the kids I follow come 
in with large ulcers because their braces aren't fitting right -- there's no one being vigilant about 
getting them to come in and get their braces fixed. 
What I struggle with is, yes, there should be control and autonomy. On the other hand as a nurse 
I am steeped in this, "I can help, I can make things better." So, it's hard for me to give up 
control and just turn my head. I'm all for giving control where it should be, but if I am to remain 
in the loop, if I have to continue to interface with my clients, then I feel a major pull to be an 
advocate and a nag and a nudge and all those things. Because I feel it's my responsibility and 
it's not just because I worry about my license, but when a bad outcome happens, when the kids 
end up on dialysis, or osteomyelitis, I feel awful because I come from a perspective of "where 
did I fail, what could I have done better?" 

Monitoring Personal Assistants 

Q: My question comes from anticipating my future as a consumer, wanting to make choices, 
and as the only daughter of aging parents. I want to avoid a Value Jet care situation where it 
looks good on takeoff, but feels like a swamp in outcome. Basically, I wanted to know how, 
particularly in New York, you keep track of the individuals providing care? Does anybody 
provide discipline for a provider who abuses people? This has been a concern in Oregon about 
how we keep people informed. Consumers need to know there are people out there who should 
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not be providing services. 

Second. Any suggestions for how institutions, state regulatory bodies can be kept on task for 
monitoring those care facilities they are supposed to monitor? In Oregon sometimes we've had 
to find out about abuse cases through the newspaper. And I don't want to wait that long. 

A: I think that there are numerous way in which monitoring occurs. In New York State there is 
monitoring and surveillance of the personal care agencies because most of those are licensed 
home care agencies. Or there's monitoring and surveillance of the certified home health 
agencies. New York State does not have a licensure law or a registry law for aides. Attendants 
who are associated with agencies go through the agency's hiring process. Abuse has usually 
occurred outside of agency situations and usually in individual cases where Medicaid money was 
not in any way involved. 
We've not seen major problems with the individual consumers who are involved in consumer-
directed programs. Basically, I think it comes down to the interviewing. In New York City 
there is a roster that is maintained for home care workers. People can call to find out whether 
and where someone has worked and you can check the references just like you would in any 
other situation: you find out where they worked; you call; you ask for information about their 
employment; and you find out their employment history. 

When it comes down to the consumer level, it's just like employing anyone else. If you were 
going to employ someone to come in to do something within your home, you'd look at people's 
references, you'd check. Those are consumers' responsibilities in a consumer-directed model: to 
ask the right kinds of questions. 

A: Yes, there is a "central registry" which we are required (under our contract with the city of 
New York) to consult every time the consumer hires a new worker. The problem is that often, 
consumers have already identified the attendant they want. They don't make their decision on 
the basis of qualifications or schedules. They're looking at chemistry. They're looking at "Can 
I successfully work and survive with this person?" And usually during the consumer's first year 
in the program, there's a fairly good turnover because they don't know what works. But 
consumers don't have to apologize to the agency for being choosy. Concepts has no allegiance 
to the worker in that sense: we provide them with benefits and we put them back in the hiring 
system. If they have worked successfully with a consumer and they don't have a negative 
reference, we try to help them move to a new position, but the consumer rules the roost. 
A: In the state of New York a piece of legislation was almost unanimously passed in both our 
Houses that addressed the disciplinary process for unlicensed persons. The legislation 
transferred this process from our state attorney general's office to the state education department. 
Currently, the only way you can discipline someone who is not licensed to practice a profession 
is through our attorney general's office. However, someone who holds a license is prosecuted 
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through our state education department. The attorney general's office and the state education 
department have spent many years looking at this issue and decided to transfer the authority to 
discipline unlicensed persons to our state education department. Unfortunately, for a variety of 
reasons, our governor just recently vetoed that legislation, but we will actively pursue that 
because our state education department believes controlling inappropriate, unlicensed practice is 
not best done through regulation, but through discipline. 

A: Delegation works well where there is a stable situation. It works well in foster homes, 
particularly where there is a stable staff and low turnover, and staff have an ongoing relationship 
with the home so that they can consult before a crisis occurs. Where I think delegation does not 
work well is the flip side of that. In my clinical practice as an emergency room nurse, 
unfortunately I see the failures of our community-based care system, not just foster care, but 
home care. So I know that we have more roads to cover to ensure that services are available to 
people when they need them, so that the red flags can be noted and people can receive care 
before their blood sugar drops to 20, or before their potassium is 3.1 and they fall on the floor. I 
think Oregon has some more work to do. 
Legal Mechanisms for Performance of Tasks 

Q: Regarding the exemption for domestic servants -- it exists in several state Nurse Practice 
Acts. It always struck me as somewhat of an odd exemption because if you wash dishes, you 
can give the insulin, but if you have had any training and are called an aide, you can't do it. How 
did this happen? 
A: I think it's a political expediency. Legislatures realized that we don't want to require 
domestic help to have to be licensed nurses. No matter what you do, they're going to help 
around the house. It's certainly not consistent. Just like the family exemptions aren't consistent. 
Education and training requirements should apply to everyone, but realistically it's not going to 
happen. 
A: There's also the Department of Labor companionship exemption that addresses the role of the 
domestic employee. In that situation, if you do not perform more than 20 percent of your time 
in household duties and you are also assisting someone in their home who is able to self direct, 
you can be considered a companion for the purpose of minimum wage and overtime. They 
don't have to be paid; however, that exemption was passed by the Department of Labor, as a 
political response to people who are from the South who are used to having a lot of household 
employees and didn't want to have to pay minimum wage. It looks to me like somebody looked 
over the Department of Labor laws and the discussion of domestic servant and said "We don't 
want to complicate this, let's keep them in this group." 
A: It's interesting to note that Washington wears two hats: delegation and also exemption. 
While there are a number of areas where they currently allow exemption, the exemption applies 
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only to unlicensed personnel who serve without compensation -- paid personal attendants would 
not be covered by the exemption. New York, on the other hand, doesn't delegate. It is better 
classed as an "exemption state." It also emphasizes the role of the nurse as the assessor, as the 
judgment person. Responsibility is really transferred rather than delegated. 

Oregon seems to have a very broad-based delegation policy which really emphasizes nursing 
judgment, nursing assessment, and linking that with the care plan and the capabilities and the 
settings and judging appropriateness. 

Relationship between Consumers and Professionals / Nurse Liability 

Q: How many people here are in situations where it is presumed that the delegating nurse is 
responsible for everything that that individual does? It seems the sensible approach is not to 
treat this as an employer-employee type of situation where the doctrine of respondent superior 
would kick in and make you liable for any negligent act that the delegate does within the course 
of their work. 
A: From our perspective in California, we're always tied to a liability string. Was the 
delegation appropriate, was it legal, and did I evaluate and assess on an ongoing basis? An 
ongoing basis -- sometimes that can be once every six months. It could be once a year. It's 
always an individual judgment based on whether the delegation was appropriate with this 
particular client, in this particular setting. Because there is no hard and fast rule, you're 
constantly evaluated on your judgment. That's okay because I feel like that's what we get paid 
for as nurses, to make that judgment. 
A: But your liability would be based on whether or not you were negligent, not on the basis that 
you happened to delegate. The mere fact of delegation doesn't give rise to the liability. It's 
whether you were negligent in doing so. 
A: Oregon is unique in its explicit limited liability for nurses -- that is, as long as they have 
performed their delegated and training tasks appropriately, they are not liable. This responds to 
one of nurses' strongest concerns about delegation. They ask "Well, if I train Mrs. Smith to do 
X today and three months from now she ends up in the hospital and someone questions that 
Mary didn't really know how to do that task, am I still liable?" 
A: It makes a difference whether all parties are employed by the same employer. For instance, 
if I am in a home health agency and the aide that I'm delegating to is also working through my 
home health agency, then I think there are more complications about whether or not vicarious 
liability comes in for the agency, not for me as the delegating nurse. The Florida rules on 
delegation are designed to deal with acute facility settings and all of the language envisions the 
nurse holding on to the liability or accountability for a proper delegation. I'm not sure how that 
really fits when we talk about it in terms of doing delegation to someone that's not on the same 
facility and not on the same staff. If you are out in the community, I'd like to differentiate that 
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A: Well, respondeat superior vicarious liability is liability that goes to you merely because of 
the relationship, an employer for its employees. For example, if an employee driving a car has 
an auto accident and kills some people, the employer is liable. If you are a nurse delegating, it's 
unlikely that respondeat superior would hold you liable for the negligence of the person you 
delegated to. However, you can also be liable if you were negligent in the delegation -- if you 
delegated to someone who wasn't qualified or didn't supervise properly. This type of liability is 
not automatic, it depends on what you did personally. 
A: I think we're confusing some issues here. First of all there is no task that belongs to a nurse, 
meaning even injections. There are many people who can give injections besides a nurse. I as a 
consumer can give injections to myself and I do not need anybody's authority to give that 
injection. I need health care professionals to educate me and to teach me and consult with me, 
but I don't need their authority. So if I become disabled tomorrow, and I want to direct 
somebody to give my injections, provide my services that I would provide for myself, but I can't 
-- that's not nursing delegation. I am empowering that person to act upon my behalf to do for 
me what I would do for myself except for my disability. 
I consult with health care professionals to help me make appropriate informed decisions. 
However, I could also, contract with Shirley, my colleague here, and say "you know, I don't 
want to manage my care, I want you to manage my care for me. I want you to take my input and 
use my holistic perspective and I want you to manage my care for me." Shirley then delegates to 
the unlicensed persons and then Shirley is practicing nursing and that unlicensed person is 
practicing nursing on Shirley's behalf to provide services to me. 

But three, four months, maybe I get my energy level back. Maybe I now have knowledge of my 
own services and I don't need to contract with Shirley anymore. And I say "Shirley, will you 
just be there as a consultant, I will now take over directing my own care." That unlicensed 
person is now receiving my authority. Maybe I call Shirley on the phone and I say "This is 
happening, that is happening, what do you think?" Shirley's responsibility is to practice nursing 
in the standards of giving me accurate information, but Shirley is not accountable for that 
unlicensed person anymore because that person is going on my authority, not hers. So I think 
we need to keep the two things very separate. Personal care attendants, if they are practicing on 
my authority as a consumer, there is no nursing delegation involved. 

A: The notion of delegation as a piece of consulting is very interesting. That is, we can 
conceive of the nurse as a consultant and the decision of whether to delegate is a piece of that 
consulting rather than a unique standalone entity. 
A: That's not what the law is today. Although some laws are that way, it's not what you'd like 
it to be. We've got 50 different states and in some states your example is the practice of 
medicine and the practice of nursing. The law isn't where you want it to be. 
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A: You need to clarify the concepts and then you can create the law. It was that clarification 
that began the process about two years ago in Nebraska. Although we don't have a mechanism 
for surrogates, adult competent persons can direct their own health maintenance activities and 
there is absolutely no requirement for nursing delegation or medical delegation or anything else. 
The next step, of course, is to get the surrogate in there. 
A: All of the Nurse Practice Acts, when they talk about delegation, they talk about authority 
flowing from the nurse to another provider. The consumer is not in the picture at all. There is 
an alternative pathway where the authority flows from the consumer to the assistant or the 
attendant, which really needs to be part of the puzzle. 
A: I hear us all struggling with different ways you can define the relationship between the 
professional and the consumer. On the one hand, we have heard it described as a consultant kind 
of relationship or a teacher who is hired to teach and then to move out of the picture. On the 
other hand for people who have lesser ability to manage their own care, we've heard of the 
nurses remaining in the loop very closely as a supervisor or case manager who may delegate to 
other people. And somewhere in between perhaps the idea of the nudge is interesting. 
Q: One observation was that if there's liability or if there's a problem, then the nurse gets the 
brunt of the fallout. The payer doesn't and the consumer doesn't. Two questions here: If a 
consumer directs and, by insistence or coercion or force of magnetic personality, the delegatee or 
the personal assistant does something that wasn't delegated or in a manner that wasn't delegated, 
would the consumer in some way be liable for the damage? If so, or if not, is that a result of the 
way laws are currently written, or practices currently evaluated? 
A: In terms of liability it's whether damages result. If we're talking about delegation that has 
lead to damages to the consumer, the consumer can't sue themselves, so it's probably not a 
damage issue. If a consumer convinces someone that's unlicensed to do something that only a 
licensed person is supposed to do, there might be a conspiracy and criminal allegation on that 
basis -- most states make the unauthorized practice of the profession a crime. You could have a 
conspiracy of yourself with the personal care attendant. But I don't think any prosecutor is 
going to worry about that. It's kind of theoretical. If we look at similar situations with the 
unauthorized practice of medicine, very often when a patient is successful in getting someone 
else to do something, the prosecution is against the person who did the unlawful act, not against 
the patient. 
Q: Isn't this common behavior among individuals getting services, contracting or agreeing to 
have your attendant or assistant do things that the nurse under no circumstance would ever have 
allowed them to do? 
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A: There are instances where the agreement is, okay the nurse is here, we're going to do it her 
way, but the rest of the time we are going to do it my way. I don't tell and you don't tell and 
we'll all be fine. 
Agency and Attendant Liability 

Q: It seems to me that we've talked about nurse liability and there's lot of representation from 
various disabled communities and perhaps some of the payers. But I'm a little concerned about 
the personal care assistant, who seems to be caught in the middle. There doesn't seem to be 
anyone here voicing the concerns of that person, who may be being forced to do things that 
she/he doesn't want to do and doesn't know how to do. Where do they fall into this picture? 
A: Well, the personal care assistant to the extent that they would be engaged in the unlawful 
practice of a regulated profession could be criminally liable as well as civilly liable for any 
damages. State law will determine what the penalties would be. To extent that the personal care 
assistant engaged in conduct or activities that they knew or should have known they weren't 
properly trained to do, there could be liability as well. It's the test, you have a duty, you have a 
duty to exercise reasonable care, not do things that you don't know how to do. Did you breach 
the duty? Did it cause damages? It's the same test for everything. 
Q: I'm wondering what happens when not only is there consumer assumption of risk, but there 
is consumer assumption of risk and responsibility, i.e., the Concepts program in New York, 
where there is a fiscal intermediary agency, but the consumer has the power to hire, fire, screen, 
to train and supervise. What liability from your point of view would an agency which is 
basically administering benefits have in this case? 
A: I intentionally did not address the employment issues since this is a seminar on delegation. 
Charlie Sabatino's works have summarized it as well. If you are simply what I would call a pay 
master -- you are cutting the checks, it's very clear that you are simply in that role of the 
paychecks and the tax deductions, things like that -- if it's clearly set up that way, that would be 
your only responsibility. The consumer bears a tremendous responsibility as an employer. 
I want to emphasize that if it's clearly set up -- that is, there are clear documents or clear 
pamphlets, there doesn't have to be a big legalistic document -- but you can establish that your 
activities are restricted to payroll administration and withholding, then you're kind of like ADP 
or some of the payroll services. You can be in just that role as the agency. There may be some 
situations in which you become a joint employer, but in general I think you can stay clean. 

Funding Issues 

Q: There's been a whole lot of discussion about stable vs. unstable and the difference between 
long-term care and other kinds of acute needs. One of the problems that I've seen is that, in 
most plans, you get this plan of care developed. Those are all costed out by someone 
representing the funding source. And then they are set. 
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Then something comes up to where you would like a little extra help with a judgment call, or 
maybe need a professional to come in and take a look, or even need a little extra help for a 
while. It stops the clock. You have to be reassessed by a state official, which unfortunately in 
my state is usually a social worker, as opposed to a nurse. It threatens your independence. So 
this explains a bit why attendants are pushed to do things by consumers. Because it's really 
scary when you ask for help that it starts this whole process that's complicated and does at a 
certain level threaten your independence. So one of the coping mechanisms is to stay quiet and 
not ask for any extra assessment. 

What we do is we try to set the care plans way up high to cover the five days out of the year that 
you may need the extra stuff so that you won't have to ask again. So then your freedom is 
protected. But it's really inefficient because you are in fact using or wasting resources you don't 
really need most of the time, just so they are there when you do need them. So how does 
everyone else deal with that? Could that be something we could work together on with the 
nurses, on to figure out how to make that happen in all of our states so we can get that extra help 
with the judgment without threatening our independence and without having to do artificial 
things that make the cost of care artificially high to cover contingencies? 

A: It's interesting how many of these delegation discussions raise funding issues and how many 
changes relating to delegation were actually initiated by funding issues. 
A: At the Department of Veterans Affairs one of the neat things about the home care program 
that we have is that we don't have to worry about that. We have a budget that's sent to the 
facility and we all figure out how it's allocated, but I don't have to account for every little thing. 
So if something happened to you, I could come out and see and then I would call up and 
authorize a little more of home health attendant care, etc., for that particular limited period of 
time. I don't come under any kinds of Medicare-type restrictions or any of the other. I have 
complete freedom in order to be able to assess you and to be able to give you the support of care 
that you need without there being any incentives to give you more care or less care than you 
need. 
A: Consumers are concerned that they can't get the services that they need because of the 
structure and design of funding. What Oregon has done well is to have the funding sources 
follow the form and the function of services. Most states have a terrible, terrible disadvantage to 
overcome because they have a whole bunch of little agencies with perhaps big budgets, but their 
own turf and their own parameters. If you are big payers, your Medicaid agencies will drive 
public policy because the government's worried about money. So in each state, we have to get 
the players, the agencies, to sit down and talk about the design of what we want. Hopefully that 
will lead to funding streams designed to accommodate the services. That's what waivers are 
about. That's what a whole lot of things are about. They can accommodate what consumers 
want, but there has to be collaboration to help government do what it needs to do. 
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A: I had a discussion with someone last evening about their mother and how she had come 
home from an acute episode with a drain and such. After one visit she had figured out how to 
manage the things that she needed to manage. She said to the visiting nurse "You don't need to 
come anymore. I can empty my drain. I can watch for it to turn clear, so I can call the secretary 
and say it's time to go in and have the drain removed." Well this person reported that the home 
care organization was just aghast that this elderly woman was sending them home. So the 
younger family member intervened and said "Look, my mother feels comfortable with what 
she's doing, she doesn't want you in her house any more, she feels comfortable. I know it's a 
Medicare-reimbursed visit, but get over it, let her be." So I think that's a good example and I 
thought it was very enlightening. It's not just the under 65-population. 
A: There's a real challenge on a national level that we've got to look at. One of the underlying 
problems in the current law is that community-based care services is an optional service under 
Medicaid, where nursing continues to be the mandatory service. So as resources become more 
and more limited, we're not going to be able to improve the overall environment through which 
providers work and clients receive their services until we work collectively to make that change 
in the federal law. 
Outcomes 

A: In our personal care program, you're not supposed to do any health tasks. Well, then there 
are a whole bunch of quadriplegics that haven't gone to the bathroom for about five years. So, 
we have some really constipated people in Texas -- I think there's a lot being done that 
everybody's been covering their eyes about in terms of health-related tasks. Because obviously 
someone's doing a bowel program somewhere, and it's not allowed in the program. 
We don't seem to know what we want out of any of these programs. From the consumer 
perspective, some of the things we do as a normal part of our "routines" would just be 
abominable to you and would be put down as a bad outcome. I think that's the whole problem: 
health professionals, providers, and state agencies all interpret outcomes differently. Consumers 
just want the service to live our lives whether we're old or young -- and that's not getting 
through too well because you're looking at outcomes in terms of how clean the catheter is or was 
it done four times a day. So I think that the problem we have in talking to each other is that 
what we're looking for as outcomes is totally different and that's why it's so important to start 
talking about the same things in terms of changing the focus towards just living in the 
community. 

Q: Isn't the counter argument that there is a connection between those kinds of outcomes, 
between the clean catheter and between you getting on with your life? 
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A: I think people have assumed that, but I'm not sure it's totally true. You know the 
assumption is that you're going to get infections and end up in the hospital. That may or may 
not happen. 
I can hear all the nurses in the back. But I think this is something we talk a lot about in the 
community. Some of the things you get taught in rehab, you never would do in the real world, 
never. It just doesn't happen. What we're saying is the reality of our lives is the reality of our 
lives. Health professionals, rehabilitation professionals are there to cure us and fix us, but that's 
not what we want you to do. We just want you to provide us a service and get out of the way. 
You are taught that you've got to fix us and cure us and I think we have a whole different view 
of things. And I think a lot of older people feel the same way -- generationally they may just 
express it differently. 

A: I would agree with you on that. I think perhaps the driving force behind the need for 
professionals to look at outcomes is because someone has to pay them, and that's what the 
payers are looking for. 
A: I wanted to talk a bit about this issue of outcomes. Some of the most interesting and 
stimulating conversations about what outcomes are being measured. Some folks want to 
measure outcomes like "Is the water hot enough?" or "Was the bath given at a certain time," or 
"Did she comb my hair in a certain way?" or something like that. What's really more important 
to the consumer is "Did I get to work on time?" or "Did I miss the bus?" "W as I at the doctor 
when supposed to be there?" Getting together will be crucial to defining quality and outcomes 
and keeping out of a shouting war with each other. 
A: I think that also illustrates the point that the outcomes for you may be very different 
outcomes than for the next person. 
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