You May Be Surprised What an LPN Can Do!

by Susan Dammann RN, LAS, Heartbeat International Medical Specialist

Is an LPN permitted to perform Limited Obstetrical Ultrasounds?

Maybe yes. Maybe no. 

Recently a center in Ohio was challenged and told they could not use an LPN to perform Limited Obstetrical Ultrasounds. Apprehension struck the leadership of the organization, as they currently had an LPN on staff doing Limited OB scans. This challenge sent them on a research mission to determine if the law in Ohio had changed since the last time this issue had been examined three years previously.

After doing their due diligence to determine the current law in Ohio, it turned out that the challenge was invalid.  Rather, they were found to be perfectly within the scope of practice for LPN’s in the state of Ohio.

Following is from the response received from the Ohio Board of Nursing in response to their inquiry. “A licensed practical nurse with the necessary knowledge, skill, and competency, under the direction of a registered nurse or a physician, is not prohibited from performing limited obstetrical ultrasounds.”  Please remember this response pertains only to Ohio nurses.

Link to the full response.

 

Researching Other States

Megan from the Missouri State Board of Nursing Practice Department stated “There is nothing in the Missouri rules and statutes that defines what LPN’s can or cannot do. It is based on their education, knowledge, skills, training, judgment, and facility policies and procedures.”

The Louisiana Board of Practical Examiners stated there is no restriction prohibiting LPN’s in the state of Louisiana from performing limited OB ultrasounds with the appropriate training.

The Louisiana State Board of Practical Nurse Examiners opinion on the scope of practice of the LPN:

The Louisiana State Board of Practical Nurse Examiners (LSBPNE) has no "laundry list" of tasks/skills an lpn can perform. Such lists tend to limit practice. Scope of practice is a fluid concept. It changes as knowledge and technology expand. Lpns must possess the knowledge, skill, and ability to perform their duties, therefore, scope of practice comes down to the competency of the individual lpn.

We formulate this opinion based on the Louisiana Administrative Code, Title 46, Professional and Occupational Standards, Part XLVII. Nurses, Subpart 1. Practical Nurses, Chapter 9, Subchapter E., Curriculum Requirements-

B. The curriculum shall ensure that program graduates possess the knowledge, skill, ability, and clinical competency to practice safely and effectively as an entry level practical nurse in the state of Louisiana.

The Pennsylvania Board of Nursing stated: “The question of LPN’s doing limited ultrasound is not a question they would be able to answer because it is asking for an advisory opinion or approval for a particular conduct or specific conduct which the board is not permitted to do.” I was referred to the following documents:

Practical Nurse Law

Section 2.  (1) The "practice of practical nursing" means the performance of selected nursing acts in the care of the ill, injured or infirm under the direction of a licensed professional nurse, a licensed physician or a licensed dentist which do not require the specialized skill, judgment and knowledge required in professional nursing.

Pennsylvania Code § 21.148. Standards of nursing conduct.

 (a)  A licensed practical nurse shall:

    1. Undertake a specific practice only if the licensed practical nurse has the necessary knowledge, preparation, experience and competency to properly execute the practice.

Conversely, there may be other states in which LPN’s are not permitted to perform Limited Obstetric Ultrasounds. It is Heartbeat’s recommendation for each center to check the primary authority for nursing practice or more than one source within your state to determine what your state permits in this regard. Your state Board of Nursing and the Nurse Practice Act are good places to begin your research.

“Typically the boards have basic practice acts and documents related to scope of practice, including the education and training that is required for the practice of practical nursing, and what work LPN basic education allows. Most boards then allow for expanded practice with additional education.” http://www.credentialwatch.org/reports/lpn.pdf

The article LPNs? What do they do? Where can they work? from the University of Phoenix states the following:

“Well, the answer to this question is highly dependent upon the state or province in which the LPN practices nursing. Some state boards of nursing, such as the ones in Texas and Oklahoma, have extremely wide scopes of practice that permit LPNs to do almost anything that individual facility policies will allow. LPNs in states with wide scopes of practice are usually allowed to perform most of the same skills that their RN coworkers can do… Other boards of nursing, such as the ones in California and New York, have narrow scopes of practice that severely limit what LPNs in those two states are allowed to do.

The LPN works under the supervision of a registered nurse (RN) or physician in most states; however, the LPN is often the only licensed nurse present in many facilities. LPNs also supervise nursing assistants in certain healthcare settings. With the right mix of experience, LPNs can be promoted to administrative positions such as wellness directors, assistant directors of nursing, wound care clinicians, staffing coordinators, and case managers.”

http://allnurses.com/lpn-lvn-corner/lpns-what-do-743176.html

 

“Best” Practice

If an LPN is legally within the scope of practice in your state then the question of “best” practice come into the picture. Is allowing LPN’s to perform scans in the pregnancy help medical clinic the best practice?  In the case of the center in Ohio, they absolutely felt it was. Their LPN has been with them for many years and proven her high level of expertise and excellence. She has gone through the appropriate training and demonstrated a high level of competency.

Which “best” practice are we evaluating? The “best” practice of ultrasound for any patient? The “best” practice of including ultrasound for an at-risk patient?

When resources are scarce, in general or for particular shifts while a center is open, isn’t the question of “best” practice really more about what is “better” for the strongest outcome(s) for the patient? Is it “better” for her to be engaged now or ask her to return later, perhaps another day? For an appropriately trained LPN, whom the Medical Director recognizes as competent, providing the patient with a timely ultrasound seems to be better than risking a potential no-show at a later time.

For any pregnancy help medical clinic which finds that LPN’s are permitted in their state to perform scans, it will ultimately be the decision of the Medical Director consistent with Board policy.

Do you know your state laws regarding LPN’s?  Do you have LPN’s on staff performing scans? Have you contacted your state Board of Nursing?  Have you researched the Nurse Practice Act in your state? Has your Medical Director and Board addressed this question and set policy? Has every LPN practicing in your clinic gone through the required training and demonstrated competent skill levels?

Having done their due diligence in researching what the law is in Ohio this center can now move forward in confidence. Going through the process has made them stronger in the end, and will do the same for all who accept the challenge to go through the research process. 

Article updated June 2017

Freedom of Association

by Jor-El Godsey, Vice President

It’s not every day Heartbeat International is considered among the likes of the Sierra Club, PETA, and the NAACP. While these groups focus on the rights of trees, animals, and a key minority people group, they rarely, if ever, find themselves publicly aligned with supporting the rights of the unborn.

So, how is Heartbeat like them at all?

Well, we are a “membership group” just like each of these, and the thousands of membership-based non-profit advocacy groups. Simple? Yes, but profoundly rooted in the fundamental principles of the United States.

And now, thanks to a recent subpoena from the Center for Reproductive Rights, we were reminded that our membership, which we refer to as “affiliates,” is founded in a Constitutional liberty—the Freedom of Association.

The Background

In the process of filing to quash the motion in response to the City of Baltimore’s ordinance infringing upon the First Amendment rights of the Greater Baltimore Center for Pregnancy Concerns, Inc., our friends from Alliance Defending Freedom rightly noted that the “…subpoenas seek information violating the Organizations’ freedom of expressive association and protected by the First Amendment privilege.”

The right to freely enter into or leave an association arises from the First Amendment, and therefore stands shoulder-to-shoulder with the vaunted Freedoms of Speech and Religion.

The God-Ordained Right to Association

A few millennia before this right was enshrined in the Constitution via the Bill of Rights, the concept of association for a greater good was proclaimed by the Preacher:

Two are better off than one, because together they can work more effectively. If one of them falls down, the other can help him up. But if someone is alone and falls, it's just too bad, because there is no one to help him. Ecclesiastes 4:9-10 (GNT)

When your organization takes the step to affiliate—or associate—with Heartbeat International, we agree to share a common purpose. Together, we agree to live out our vision before the watching world in the way we decide—the very right attacked by the Center for Reproductive Rights’ (note the irony) subpoena.

Our Passion for Association

So when you reach out to us at Heartbeat, we in turn reach out to you. Your missional challenges—in various ways—become ours. That is the heart of our affiliation association. It’s joining together for something greater. 

While this powerful principle undergirds Heartbeat’s network and is critical for a free society, it is more important to note that association is the very center of the Gospel itself. When we associate with the Lord Jesus Christ, He in turn extends Himself to us!

We associate—in claiming ourselves Christians—with Christ and with one another! 

            For this reason I bow my knees before the Father, from whom every family in heaven and on earth derives its name, that He would grant you, according to the riches of His glory, to be strengthened with power through His Spirit in the inner man, so that Christ may dwell in your hearts through faith; and that you, being rooted and grounded in love, may be able to comprehend with all the saints what is the breadth and length and height and depth, and to know the love of Christ which surpasses knowledge, that you may be filled up to all the fullness of God. —Ephesians 3:14-19 (NASB)

We are family in Christ and fellow laborers in this great work of the Gospel of Life. Heartbeat is honored and privileged to be counted with our missional friends in Baltimore as they undergo persecution on account of their passion to bring life-affirming help to those facing life-and-death decisions.

 

Improving Your Medical Release Authorization Form (or Is Your Medical Release Form Legal?)

By Ellen L. Foell, Legal Counsel, Heartbeat International

medicalfilesWhat does a good medical records release authorization look like? Many centers have pieced together authorizations through the years in response to an increased understanding and awareness of the need for confidentiality.

With the passage of HIPAA in 1996, followed by HITECH in 2009, many states have made further efforts to supplement and buttress privacy rights. These states have passed statutes to further define patient rights with respect to confidentiality, access to medical records, and privacy expectations from health care providers.
Some of those state-level statutes mimic HIPAA. Others expand the definition of "health care provider" and consequently, suck pregnancy help organizations into the proverbial HIPAA vortex. Still other statutes, thankfully, delineate the areas in which HIPAA is not expanded.

All this to say, with regard to privacy expectations, confidentiality requirements, and specifically, a patient's rights to access medical records, one size does not fit all.

What About Medical Records Release Authorizations?

Not all states address the requirements of an authorization, though some states specify exactly what should be included in a medical records authorization. But note, simply because a state has a statute outlining what a records release authorization should incorporate, it does not automatically follow that the statute applies to a pregnancy help organization.

The statutes typically are included in the statutes for health care providers, physicians, or state governmental agencies that provide medical care and are thereby usually under the rule of HIPAA. It is Heartbeat's position that most pregnancy help organizations, even pregnancy help medical centers, do not come under the authority of HIPAA because they do not engage in the eight specified transactions necessary to qualify an organization as required to be HIPAA compliant.

However, if by some operation of the state definitions, your pregnancy center falls within the meaning of the statute, then statutory specifics pertaining to privacy and access to medical records, for example, should be applied.

For more detailed information, see Heartbeat's Frequently Asked Questions about HIPAA and Pregnancy Help Organizations (available to Heartbeat Affiliates only) and the Heartbeat Academy course, "HIPAA, Privacy Laws, and You".

How to Understand if HIPAA Applies to Your Center

Perhaps some examples might help our understanding.

Ohio
Ohio law specifically gives a patient or a personal representative the right to obtain or examine a copy of all or part of one's medical record. The patient, his personal representative, or an authorized person must submit such a request in writing to the provider. The patient must make the request in writing, it must be signed by the patient, requesting the release within 60 days of the request. The request must also specify the recipient of the records including an address, or specify that the patient will personally pick up the records.

The provider must comply with the request unless disclosure would be medically contraindicated, in which case the provider will provide the record to a designated physician or chiropractor. A patient, his personal representative or an authorized person may bring a civil action against any provider who fails to furnish a medical record to enforce the patient's right of access to the record.

Like Ohio, Indiana's statute is very specific requiring the following as mandatory components for a valid authorization for release of medical records:

  1. The name and address of the patient.
  2. The name of the person requested to release the patient's record.
  3. The name of the person or provider to whom the patient's health record is to be released.
  4. The purpose of the release.
  5. A description of the information to be released from the health record.
  6. The signature of the patient, or the signature of the patient's legal representative if the patient is incompetent.
  7. The date on which the consent is signed.
  8. A statement that the consent is subject to revocation at any time, except to the extent that action has been taken in reliance on the consent.
  9. The date, event, or condition on which the consent will expire if not previously revoked.

South Carolina
South Carolina also has a statute specifying that health care providers (South Carolina's definition of a health care provider does not imply nor explicitly include a pregnancy help organization) must include the following information in any authorizations:

  1. Name and date of birth or social security number
  2. Statement of who is authorized to release records and who is authorized to receive records
  3. Purpose of Disclosure
  4. Type of information to be disclosed
  5. Psychiatric records or infectious diseases (i.e. HIV, Hepatitis C, TB, etc.) must be clearly marked or checked before they will be released and must be physician approved except for payment, treatment, or operations
  6. Statement acknowledging the patient's right to revoke or cancel authorization
  7. Statement indicating the patient's right to refuse the release of information
  8. Statement that information disclosed pursuant to the authorization may be subject to re-disclosure and is no longer protected under this authorization
  9. Statement that will not condition treatment on patient providing authorization
  10. An expiration date
  11. Signature of patient or patient's representative

California
On the other hand, California's statute reiterates the HIPAA requirements as the standard for medical records release authorizations.

The Takeaway

No two state statutes are exactly alike in breadth or in applicability, which is why this article is intended to be instructive, not directive. A center should take the following into consideration when evaluating its authorization to release medical records:

  1. Is the center a covered entity under HIPAA? If a center is a covered entity, the center should follow HIPAA regulations for releasing medical records.
  2. Is the state's definition of health care provider broad enough to include a pregnancy medical help center? If so, HIPAA regulations might still apply.
  3. If the state definitions of health care providers do not include, implicitly or explicitly, pregnancy medical help centers, then the attendant laws on authorizations will most likely not apply.
  4. However, a center can examine state statutes on access to medical records, and authorizations to release medical records for instruction on what a comprehensive authorization would include.
  5. Instructive state statutes regarding authorizations are often found in the context of workers' compensation statutes, physician-patient relationship statutes, and statutes governing governmental agencies.

A suggested comprehensive medical records authorization form is included here.

 


References

1. Health Insurance Portability and Accountability Act of 1996 42 U.S.C.§1320d-5(d) (2006)

2. Health Information Technology for Economic and Clinical Health, passed as part of the American Recovery and Reinvestment Act, (Pub.L. 111–5)

3. 45 C.F.R.§160.103

4. As an example, Texas has passed a statute which so expansively defines health care provider that pregnancy medical help centers are included in the definition. Consequently, the laws applying to health care providers apply. Texas Health and Safety Code § 181.001(b)(2)(B)

5. Ohio Revised Code, §3701.74(B)

6. Ind. Code § 16-39-1-4

7. S.C. Code of Regulations R. 69-58 § 17, 18

8. California Civil Code § 56.11, 45CFR § 164.508

9. 45 CFR 164.508(b)(1) and 164.508(c)(1)(i)

 

 

The No-Problem 'Problem' Means Good News in Maryland

  

“Because Defendants have failed to demonstrate an actual problem in need of solving, it is unnecessary to reach the narrow tailoring prong of the strict scrutiny test.”1

Those are the words footnoted on the last page of last Friday’s opinion by Judge Deborah Chasanow in the case Centro Tepeyac v. Montgomery County, et al., Case 8:10-cv-01259 (D. Maryland 3/7/2014).

Imagine that… Montgomery County was unable to demonstrate to the Court that pregnancy help centers pose a problem in need of solving. What’s just as telling is what the Court also stated in the body of the opinion:

Quite simply, the County has put no evidence into the record to demonstrate that [limited service pregnancy resource centers’] failure clearly to state that no doctors are on premises has led to any negative health outcomes. Id., at 52.

The County, in the words of the pregnancy help centers, was searching for a problem to fit their Resolution (Id., at 42). The problem with the County’s problem, however, is that in the end, Montgomery County’s pregnancy centers don’t actually pose a problem to the County’s residents.

The Background

The case before the Court was a Resolution attempting to force Montgomery County’s pregnancy help centers, including Heartbeat affiliate Centro Tepeyac, to make specific disclosures stating what services they did—and did not offer.

The Resolution, Number 16-1252, originally passed Feb. 2, 2010, and required Montgomery County pregnancy help centers to post notices in specific languages and in specific locations on-site. The notices were to state that licensed medical professionals were not on the premises and that the County recommended pregnant women see a physician for a medical diagnosis of pregnancy.

Represented by Alliance Defending Freedom, Centro Tepeyac challenged the Resolution on the grounds that it violated the freedoms guaranteed by the First and Fourteenth Amendments.

Now several years into the process, Judge Chasanow, a District of Maryland justice, clearly and cogently determined that the Resolution imposed an unconstitutional burden on the rights guaranteed to centers.

The Process

The opinion, issued Friday, March 7, 2014, was actually the District Court’s revisit to the Resolution, which was most recently reviewed July 2013 in a decision by the 4th Circuit.

Throughout its long and convoluted procedural journey, the Resolution has been analyzed and reanalyzed. The flow of the County’s argument was as follows:

  1. The County has a compelling interest in protecting women’s health.
  2. PHCs do not advise women that medical professionals are not on site and that the County recommends pregnant women see a physician for a medical diagnosis.
  3. Pregnancy Help Centers harm women in failing to make the two statements to pregnant women.
  4. Pregnancy Help Centers obstruct the County’s interest in protecting women’s health.
  5. Mandatory disclosure will advance the County’s interest in protecting women’s health.
  6. PHCs must therefore be compelled to make such statements to pregnant women on PHC premises.

In Friday’s ruling, Judge Chasanow found that the County did indeed demonstrate a compelling interest in protecting the health of women (point 1 above). The Court also assumed, for the sake of argument, that the pregnancy help centers did not make any of the statements required to be made (points 2).

However, the flaw in the County’s argument, the Court reasoned, was between points 2 and 3, where the County failed to demonstrate the connection between the pregnancy help centers’ actions (or assumed inactions) and any evidence-based harm to pregnant women.

Commenting on the County’s evidence, the Court stated:

The County attempts to elide this distinction by providing no evidence for the effect, only the alleged cause. The Waxman and NARAL reports focus on the misinformation problem. So too do all of the comments made to the County Council in support of the Resolution. These commenters – who were universally volunteers from a pro-choice organization sent to investigate LSPRCs’ practices – discussed the alleged misinformation they were provided and that that the LSPRCs were not forthcoming with the fact that they are not a medical center and that they do not provide referrals for abortions. But even assuming all that is true - that LSPRC are presenting themselves as medical providers and thus pregnant women are accepting their misinformation as sound medical advice, the County must still demonstrate the next supposition on the logical chain: that these practices are having the effect of harming the health of pregnant women. The County has failed this task.

With the County’s failure to connect the link at the earlier points, the Court never had to consider the analysis of whether the County’s Resolution passed the strict scrutiny least restrictive means test typically employed by the United States Supreme Court in such cases.

The Final Analysis

This case is a clear victory for pregnancy help centers, not only in Maryland, but across the nation.

The Court attacks the very heart of the evidence, its legitimacy and its sources. Further, the Court logically and reasonably requires the County to demonstrate in court what it should have considered at the legislative level: Does the (mis)information justify the legislation?

Though the case is likely to be appealed by the County, the strength and logic of the decision should serve as a guide for other judges considering such legislation.

Stay tuned, but in the meantime, congratulations to the Montgomery County pregnancy help centers, Alliance Defending Freedom, and the other attorneys representing and standing for life.


by Ellen Foell, Legal Counsel

1. Centro Tepeyac v. Montgomery County, et al.Case 8:10-cv-01259 (D. Maryland 3/7/2014)

Getting your legal pulse rate going!

by Ellen Foell, Heartbeat International Legal Counsel

If the purpose of Pulse is to help life-affirming people keep their fingers on the pulse of America’s pregnancy help movement, then here are two very interesting and highly contentious battles which mandate a closer look.  On opposite ends of the country, California and New York, local governments have pitted themselves against pregnancy help centers (PHCs), in both the legislative and judicial forums.

In New York, Mayor Bloomberg and the city council’s efforts to unfairly regulate the work of PHCs through superfluous fraud, deception, and consumer protection laws, came to a grinding halt as a federal district court judge ruled that the Council’s law was unconstitutional.  Indeed, the court found that the speech (essentially advertising and information on services provided) of PHCs was not commercial speech, that the speech of centers was particularly prone to biased regulation because of its controversial nature and that New York City council’s attempt to regulate the speech was offensive and unconstitutional.  The court imposed a preliminary injunction on the application of the law pending a trial on the merits.

On the other side of the country, San Francisco - presumably unaware of the rulings in Baltimore, Montgomery County, and New York - proceeded full-speed ahead. They threatened two San Francisco PHCs, First Resort and Alpha Pregnancy Center, with a two pronged legal action.  One prong is the now typical, albeit unsuccessful, proposed law which seeks to regulate the speech of PHCs.

The other prong is the threat by San Francisco City Attorney Dennis Herrera that he intends to pursue legal action against the two pregnancy centers whose business names pop up first in a Google search when someone uses San Francisco and abortion as keywords. According to Herrera, that first-in-line pop up constitutes false advertising and violates reproductive rights of women. This attack is so bizarre that even those who are not pro-life see that Mr. Herrera is on a hunt to harass PHCs and they easily recognize the ridiculous nature of the threat.

Zombie, a contributing blogger to PajamasMedia.com, an online blogging portal, wrote: “even from my pro-choice perspective, the city’s attempt to essentially banish any counseling center which doesn’t encourage or perform abortions is simply beyond belief.” This blogger continues, “And in the press conference proudly announcing this, the City Attorney openly admits that it’s politically motivated, that he’s going after the centers because he defines them as ‘right-wing.’ But seriously, have you ever looked at the ads for the other kinds of pregnancy counseling centers, the kinds of places where if you walk in, the only advice they ever give you is abort abort abort?

“Never do they put up big neon signs saying ‘Fetuses aborted here.’ Instead, they have innocuous (some would say ‘deceptive’) names like ‘community health center’ or ‘reproductive services clinic’ and so on.” Zombie concludes, “In fact, if you flip the narrative, and do a Google search for ‘pregnant’ and ‘San Francisco,’ the top result is a hospital that does provide abortions.”

In a comment posted on Zombie’s PajamasMedia.com blog "chambers," a reader, responded to the article with this observation, "The psychology of the legislators driving this effort is skin-crawlingly creepy … How can so much passion, indeed fury, be worked up for ending the life of a fetus in the womb?"

Indeed, skin crawlingly creepy. If this doesn’t make our pulse rate rise, what will?

 

Guidelines For Political Activities Of Not-For-Profit Organizations

 

by James Bopp, Jr.,

Bopp, Coleson & Bostrom

*This article is designed for general informational purposes and should not be relied upon as a substitute for the direct counsel of an attorney. Please consult legal counsel within your state for most applicable legal advice.*

As not-for-profit organizations move increasingly into lobbying and political activities, the need for clear guidelines on the permissible activities of the various forms of non-profit organizations also increases. These guidelines summarize the requirements of the Federal Election Campaign Act, the Bipartisan  Campaign Reform Act (BCRA), the U.S. Supreme Court decision in Citizens United v. Federal Election Commission (2010), and the Internal Revenue
Code. Revisions to the Guidelines are in italics.

These are guidelines for action, recommended to insure that not-for-profit organizations conform with the law. While the law may allow variations from these guidelines, experience has shown that the safest and best course for non-profit organizations is to act in conformance with these recommendations.2 One caution, state laws may be more restrictive than these guidelines and, therefore, in applying them to specific situations, you should request specific legal advice.

Download the document here...

 

Charitable Solicitation

Win: $68.00/Lose: $4,000.00 plus legal fees

From On the LeaderBoard | Volume 1, Issue 1

final logo gapps

True Story: a non-profit organization, set up as a 501(c)(3), recently was fined $4,000.00 (it was negotiated down from $10,000.00) for receiving a donation in the amount of $68.00. The reason: the organization failed to register to solicit donations as a charitable organization in the pertinent state.

True Fact: Your organization MUST register to solicit donations in 39 of the 50 states as well as in Washington D.C. if your organization collects more than $25,000.01 in total gross receipts AND if anyone in your organization is compensated to conduct solicitations (even as only part of the job). Further, registration in the states in which you solicit must occur before solicitation actually occurs. The specific exemptions, exclusions, and requirements vary from state to state.

The explosion of the number of non-profits on the business and cultural landscape combined with the explosion of internet usage has created a regulatory and legal morass seemingly waiting to suck non-profits into the quagmire. The regulatory morass is best exemplified by the proliferation in recent years of charitable solicitation laws. Most state charitable solicitation laws are based on the “Model Act Concerning the Solicitation of Funds for Charitable Purposes” (Model Act). The laws are designed to keep charitable organizations honest with their donors and the IRS, as well as to prevent fraud. The down sides of the laws are that they are tedious, and if your pregnancy help center (PHC) or ministry solicits funds from more than one state, the laws can become burdensome.


The primary question raised is what exactly is a solicitation.

Solicitation, according to the Model Act, defined very broadly, includes any direct or indirect request, oral, written, or electronic, for money, credit, or thing of value for a charitable purpose or organization. A direct request is easy enough to understand. The PHC executive director asking anyone for a donation would be an example of a direct solicitation. A volunteer at the PHC who participates in a walk for life and asks Aunt Sally three states away to contribute $10.00 toward her goal would be more of an indirect solicitation. Or consider Uncle Fred who decides on December 30th that he needs a good tax break and donates to his favorite niece’s place of employment in the next state over. As soon as the PHC sends a thank you note and tax receipt with the ever-present “please consider another donation” in any of these scenarios, the PHC has made a request according to the Model Act’s definition.

The ultimate jurisdictional question is: has someone purposefully directed a charitable solicitation, “made an ask,” to a resident in our state? If the answer is “yes,” then the statute is triggered. Note that the answer to the question is not conditioned upon whether or not the ask is successful. That may or may not be considered by a state regulator. But overall, whether the charitable organization was successful or not in the ask is immaterial.

Thus, under a broad interpretation of most states’ charitable solicitation laws, a PHC fundraising newsletter sent out of state could be interpreted as a solicitation. Although there is not enough case law on this yet, it is possible for a far-reaching court to determine even that a “donate now” or “click here” button on a website (accessible by anyone in the nation) would be a direct appeal sufficient to trigger registration requirements.(There is some “give” -- no pun intended -- on the website appeal issue.)

What does this mean for your PHC? It means that there are very likely more states in which your PHC should be registered under the charitable solicitation laws than you might currently think. The good news is that most state regulators have more to do than they can handle exactly because of the dramatic growth in non-profit organizations. The bad news is that your PHC must still navigate these waters carefully because we face an active opposition.

True Recommendation: As a leader and board member, you have been entrusted with dollars which you must wisely and efficiently steward. The temptation can be to let such requirements overwhelm you to the point where it is easier to ignore the statute.

Resist the temptation.

Consult your local attorney to get advice regarding the registration requirements of the states from which you solicit or receive donations. Even though it may only be a $25.00 or $50.00 annual donation coming into your organization through a “donate now” button or an annual appeal letter, a fine of $4,000.00 or $10,000.00 plus related legal costs and staff time are a far heavier burden than the cost and bother of registering.

Note: The “Model Act Concerning the Solicitation of Funds for Charitable Purposes” was drafted in 1986 by The National Association of Attorneys General Committee on Trusts and Solicitations. It still remains the standard on which most states have modeled their individual state statutes.

What you need to know about Reasonable Regulations

osha
OSHA requirements for provision of first aid and cardio pulmonary resuscitation (CPR) in PHCs/PMCs

by Ellen Foell, Legal Counsel

The path to a successful and confident end can be tortuous and confusing when it involves government regulations and bureaucratic verbiage.

Although pregnancy help centers or pregnancy help medical centers (PHCs and PMCs) are not as burdened with rules and regulations as other industries (say bridge building or airport construction), they do face enough to make the jobs and lives of executive directors harrowing at times and frustrating at others. One of the areas of potential bewilderment is fulfilling OSHA regulations. 

For instance, we were recently asked by an affiliate about OSHA requirements for provision of first aid and cardio pulmonary resuscitation (CPR) in centers. (Those regulations, by the way, can be found at http://www.osha.gov/SLTC/medicalfirstaid/index.html.)

It may be helpful to frame our discussion in terms of OSHA’s primary concern and reason for existence: the health and safety of workers in their workplaces—not just any workplace, or a hypothetical workplace, but the worker’s workplace. Thus, regulations applicable to an employer must be read in the context of the workplace and its specific circumstances.

OSHA’s requirements for health and safety are different for the office than they are for the assembly line or the hospital. Each of these workplaces have certain overlapping regulations, but each also has very different workplace-specific regulations. So, when considering which OSHA regulations are applicable to PHCs, directors and boards of directors must consider that even PHC and PMC requirements differ, based upon the services offered.

For PHCs and PMCs, the basic applicable OSHA regulation is found at 29 C.F.R. 1910.151(b), which provides:

In the absence of an infirmary, clinic, or hospital in close proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.

Thus, a center can fulfill the requirement by providing either (1) an infirmary, emergency room or clinic in close proximity; or (2) someone trained and identified to render first aid. Most centers rely on the proximity of an emergency room or urgent care center.

OSHA has also permitted fairly consistent access to trained emergency service providers such as firefighters or emergency medical technicians as a reasonable substitute to meet this requirement, which leaves open the issue of what OSHA considers “close proximity.”

That analysis for centers involves two factors:

  1. What injury can be reasonably anticipated to occur in the center?
  2. How close to an emergency care facility would a center need to be to timely provide care to that injury?

If we move outside of the pregnancy center discussion for a moment, it may help to understand what OSHA is seeking. Consider the logging industry: it involves the use of heavy equipment, chain saws, 50-70 foot trees falling and lots of trucks. Imagine one of those chain saws in the hands of a novice logger. Could the employer anticipate that the logger might have an accident and cut off his or someone else’s arm with the chain saw?

Certainly, that is not a hoped-for result, but it is a reasonably anticipated injury. There is no band aid big enough for such an injury. How close would the employer or the logging site have to be to an emergency care facility to satisfy the “close proximity” requirement? I would suggest close enough to save the arm and life of the logger…time is of the essence with such an injury. In that case, arguably, two to three minutes is suitably close proximity.

Now, let us return to the PHC site. For a PHC the potential of life-threatening injuries is probably quite low—no more than the typical office. Most reasonably anticipated injuries in such a setting would probably be taken care of with a first aid kit. Five to ten minutes to an emergency care facility may be suitable to satisfy close proximity requirements.

For a pregnancy medical center administering ultrasounds, consider what potential injuries might result from the services rendered (setting aside for the moment the fact that heart attacks, diabetic comas, etc., can happen anywhere, anytime to anyone). Perhaps it might be the danger of a rash because of the wrong gel.*

In the process of evaluating potential risks, the center should also consider the extent of potential harm (i.e. how bad could the harm be), and whether the potential harm could be exacerbated by being farther than 10 minutes away from an emergency care facility (i.e. how much worse will the potential harm get if emergency care isn’t accessed quickly?). In the case of the aforementioned allergic reaction, the answer is the extent of potential harm is the rash itself and that the rash would not likely be exacerbated by distance of 5-10 minutes from the hospital.

Further, regulations for PMCs, specifically, require that employers provide training to any employees who have occupational exposure to blood or other potentially infectious materials, such as employees assigned medical or first aid duties by their employers. The standard at 29 CFR 1910.1030(b) defines "occupational exposure" as "reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties."

Another option is to have an employee trained in basic first aid care. If a center chooses to go this route, that employee must also be identified to other staff as the designated trained representative. Further, “if an employee is expected to render first aid as part of his or her job duties, the employee is covered by the requirements of the Occupational Exposure to Blood borne Pathogens standard (29 CFR1910.1030).  

This standard includes specific training requirements. Most centers do not have a full-time staff member to whom such a duty can be given. It is, therefore, advisable that a center determine the closest proximity of an emergency room, urgent care, or availability of urgent care services.

Finally, let’s briefly address the unlikely injuries or harms that could occur to anyone, anytime, anywhere: heart attacks, strokes, diabetic comas, and epileptic seizures, to name a few. While these may occur anywhere at any time, they are not reasonably expected to occur anywhere, except, perhaps, in clinics for stroke, seizure or diabetic patients.

OSHA expects centers and all employers to assess what injuries could likely occur in that particular workplace. Assess your center within the context of considering that OSHA stands for “Occupational Safety and Health Act.” In other words, what are the safety and health hazards associated with the occupation for employees and clients?

My recommendation, therefore, is that our affiliates consider the following:

  • What are the services which the center offers or activities that take place at the center?

  • What are the potential reasonably related medical harms which could flow from those services or from activities carried on at the center?

  • Would a first aid kit address those reasonably anticipated medical harms?

  • Would someone trained in first aid be a useful resource in addition to the medical kit?

  • In the event of harm or injury, would proximity to an emergency room (within 5-10 minutes) prevent death, or irreversible harm?

  • Is there anything in the state law which requires more than what OSHA requires?

Explore some of the following links for more information:

 


 

*Infection due to skin to skin contact, or exposure to bodily fluids would be covered under OSHA blood borne pathogens regulations.

Honoring Everyday Heroes

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Just like any other everyday hero, the quartet of life-savers honored as Servant Leaders at the 2013 Heartbeat International Annual Conference quietly go about their business with no expectation of being celebrated this side of heaven.

It came as no surprise, then, when the first winner—Becky Coggin Hyde—stood speechless, even flabbergasted, as Heartbeat President Dr. Peggy Hartshorn, PhD, announced the Arlington (TX) Pregnancy Centers director as the first of four recipients for Heartbeat’s most prestigious award.

Becky was joined by Beverly Kline, Ann Carruth, and Amy Jones, while Mary K. Tiller was tabbed as the inaugural “Heart of the Future Award” honoree for emerging leaders in the pregnancy help movement.

A native of Memphis, Tenn., Becky became Director of Arlington Pregnancy Centers in 1987, and has served in that capacity ever since. In her 26 years, Becky has expanded the center—now called Arlington/Mansfield Pregnancy Centers—to four locations, along with a resale store that funds much of the ministry.

“Becky’s leadership skills are excellent,” one of her co-workers said. “When the Lord lays something on her heart and there is unanimous agreement with the Board, she moves expediently. She waits on the Lord, and she doesn’t move until she is sure He is in the midst of whatever project presents itself.”

Another of the award winners laboring in Texas, Beverly Kline, founded Living Alternatives in 1982 and still serves as executive director for the ministry that has served women and families with everything from pregnancy tests and living accommodations to life-skills training and adoption services in its 31-year history.

Originally based in Beverly’s one-bedroom apartment in Tyler, Texas, Living Alternatives now includes a pregnancy resource center, a resale ministry for teen foster girls (“Keeps Boutique”), a maternity home, and an adoption agency.

The third Texan recognized as a Heartbeat Servant Leader at her home-state Conference was Dallas-based Council for Life Founder Emeritus Ann Carruth.

One of 11 original founders of what was then known as Pregnancy Resource Council in 2001, Ms. Carruth’s vision to support a local pregnancy center began with a single banquet called “Celebrities Celebrating Life,” and has since raised $3.3 million.

Council for Life, who has partnered financially with Heartbeat, began a national affiliate program in 2011, encouraging other major pro-life donors in U.S. cities to unite for the cause of Life.

Amy Jones currently serves as Director of Servants for Life, an international ministry based out of Raleigh, North Carolina, which offers mentoring, coaching, counseling, and training to ministry leaders and boards. She began her life in ministry as a high schooler serving with Youth for Christ, and spent 22 years leading Christian Life Home, a housing ministry for young, pregnant girls.

She currently serves on the Board of Directors for the Carolina Pregnancy Care Fellowship and as a consultant with Heartbeat International.

The founder and executive director for Expectant Heart Pregnancy Resource Center in Longview, Texas, Mary K. Tiller was given the first Heart of the Future award for younger leaders stepping into key roles in local pregnancy help organizations across the globe.

Mary K., who holds a master’s degree in Human Services, Marriage and Family from Liberty University, founded Expectant Heart in 2011, and the center began serving clients in November of 2012.

“Mary K. represents what a next-generation leader should be,” Heartbeat Director of Ministry Services Betty McDowell, LAS, said. “We have witnessed firsthand that she is a servant leader and a learner, and because of that, it has been our delight to work with her.”

To view all Heartbeat Servant Leader award recipients, click here.

An Alliance to Celebrate

 

 by Ellen Foell, Esq., Heartbeat International Legal Counsel

Before I joined the Heartbeat International team, we entered into an agreement with Alliance Defending Freedom (then Alliance Defense Fund, “ADF”). Although I was not familiar with ADF, I soon learned about the valuable and critical place ADF holds on the beachhead of our legal and culture wars.

Led by Alan Sears, Alliance Defending Freedom is laser-focused on its three-fold mission: defending liberty, marriage and sanctity of life. It describes itself as follows:

[A]n alliance-building legal ministry encouraging Christians to come together to accomplish what none of us can do on our own: protect and defend the religious freedom that was bestowed upon us by God and secured in the U.S. Constitution. We are building an ever-stronger alliance of like-minded allies — attorneys, ministry leaders, pastors, Christian organizations, students, and other Christians — who value a life of faith lived freely and protected by just laws.

ADF has one of the most effective and efficient networks of attorneys to provide assistance to pregnancy help centers: their network of allied attorneys. An allied attorney is an attorney who has been trained at one of ADF’s outstanding annual academies in constitutional law so they can provide pro bono/dedicated service to the Body of Christ. 

At the academy, attorneys are provided continuing legal education on all three core issues, brought up-to-date on the applicable law by ADF’s team of invested, experienced and knowledgeable attorneys.

ADF’s allied attorneys may practice corporate law, real estate law, civil litigation, or they may be general practitioners. The points of commonality are their commitment to ADF’s mission and a willingness to donate some of their legal time and expertise to those who find themselves in need of trusted legal services.

A week rarely goes by where I don’t ask ADF to refer an allied attorney to one of Heartbeat’s affiliated pregnancy help organizations. I’ve asked for allied attorney help on behalf of centers facing legislative assaults, seeking to open a satellite center in another state, and I’ve sought their help with questions about employment and center bylaws.

Whether you’re a board member or an executive director, if you find yourself in need of legal help for your pregnancy help organization, contact me, Heartbeat International’s legal counsel, and I’ll put you in touch with ADF and their team of dedicated allied attorneys.

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