The Science Journal of the American Association for Respiratory Care

2000 OPEN FORUM Abstracts

Issues in Respiratory Care Competencies

Anthony L. Dewitt, JD, RRT, Bartimus, Frickleton, Robertson & Obetz; Jefferson City, Missouri

What are the legal implications of a Respiratory Care Competency Program? There are several problems with competency manuals, and competency evaluations. Used appropriately, a competency protocol that assesses individual competence and dovetails with the department quality improvement plan is a shield against lawsuits. It proves that the hospital was ensuring competence, and thus, even if there is a single incident of negligence, there isn't a likelihood that the facility will be hit with punitive or enhanced damages. However, if the program is no more than a paper-based whitewash that no one really puts any stock in, it can be very hard for the hospital to defend.
Issues Include:
A. Is The Competency Exam Clinically Valid--NBRC examinations are proven valid through statistical assessments of their ability to predict competent performance of job duties. If a hospital or state board uses an examination that is not a good predictor of job performance, much of the shield such a competency exam provides is lost.
B. Are the Competency Examiners Properly Trained--Where a hospital uses its own employees to assess employee job performance, there is always a possibility that objective measures become subjective measures. To be valid, competency assessment must be blind to social and interpersonal factors.
C. Are The Competency Exams Neutral With Respect To Discrimination--In the 1970s and 1980s hundreds of companies implemented testing programs that were designed to ensure that they had highly-qualified employees. Either intentionally or negligently, the testing programs screened out large numbers of blacks and other minorities, and ran afoul of the Civil Rights Act. A competency program that is unfair to any group or minority is a legal problem ready to happen.
D. Is There Ongoing Review--There are lots of ventilator policy and procedure manuals out there that only list assist-control and SIMV. If the competency manual does not adequately address changes in the state of the art, by providing for regular, ongoing review for technical and medical advances, it will quickly become worthless.
E. Is It Consistently Applied--A competency program that falls by the wayside because the clinical evaluators and other staff are needed to give floor therapy quickly becomes a liability. A lawyer likes nothing better than to be able to say, "See, they didn't do what they said they'd do when the Joint Commission was here."
F. Is It Ethically Administered--Rater to rater variability, application of rigid standards to one group of employees and no standards to others is a sure way to make the whole system wind up the focus of an employment lawsuit. To be a shield in a termination case, the system must be objective and valid.

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