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Is it legal to fill a position with a noncertified ACLS RN, when the job description states certification is required?

Friday April 5, 2013
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Question:

Dear Nancy,

I worked in critical care after obtaining my advanced cardiovascular life support certification my first year out of school. Now I am an RN working part time in endoscopy. I consider this my retirement job and feel it is much less stressful. The job description of my position states ACLS certification is required. While I don't feel ACLS is needed due to the constant anesthesia presence, it is not my place to debate this. I question why nurses who are not certified can work in my absence. My department is listed under surgical services the nurses that work in endoscopy when I am not there are surgical circulators but none are ACLS certified. I have brought this to the attention of my supervisors, but have been told that since the nurses are under surgical services they can fill in for me. If this is the case, then why did they send me home the day my ACLS certification lapsed several years ago and replace me with an RN who was not ACLS certified? I have brought this up during my annual review every year since then, but have never been given a satisfactory answer. Since the patients are protected by anesthesia presence, I have not wanted to make waves. But now I am retiring and the position will be filled by those noncertified RNs indefinitely, and anesthesia presence is becoming less reliable. Is this job trade-off legal? It seems to me that if the job description defines the need for ACLS certification, then only those qualified should be filling that position, whether temporarily or permanently. Essentially, my director told me to keep quiet. Should I take this further?

Thank you so much for your respected responses on this site.

Brittany



Nancy Brent replies:

Dear Brittany,

Your concerns about the adopted job descriptions requiring ACLS certification for your position and your employer not complying with that adopted requirement for nurses in the endoscopy unit are well founded. If certification is not required, then it should not be in the job description as a requisite for the position.

Ethically, nurses should be advocates for patient care and safety. A patient's well being may well be compromised by not having ACLS certified nurses on duty, so your concerns also take on an ethical perspective.

As you know, job descriptions are often introduced into evidence during a professional negligence case where a nurse's conduct is alleged to have been negligent and caused an injury to a patient. In addition, one's job description can be used in professional disciplinary proceedings by the state board of nursing whether or not a patient has been injured. In these proceedings, the issue is conformity or nonconformity with the state nurse practice act. Not being certified when one is required to be by job description and standards of practice could be seen as unprofessional and unethical conduct under the act and rules.

You mentioned that your supervisors were not worried about the lack of compliance with the ACLS requirement, especially when a substitute RN does not have the certification and works in your stead. If you have not done so, you may want to consider raising this issue with the risk manager. As you know, his or her responsibility is to reduce any risk to the facility, financial or legal.

Consider consulting with a nurse attorney or attorney who works in healthcare and can carefully analyze this noncompliance. His or her recommendation may be to share this information with an outside agency that certifies or accredits the endoscopy unit and the surgical services department.

Reviewing what your professional association, the Society of Gastroenterology Nurses and Associates (www.sgna.org), requires also would be a good idea.

Thank you for your kind remark about this column.

Regards,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.