Finding information regarding legal issues in health ministry is like looking for half a needle in a silo of hay. Every state may have variations to any theme, but I obtained permission from Barbara G. Graybill, Esq., a lawyer with Schutjer Bogar LLC of Harrisburg, Pennsylvania, to publish the following information regarding Pennsylvania law that she put together for a parish nursing seminar I attended recently. She did request that I include the following:
The information herein reflects the views of the author. The information should be construed as general guidelines and not interpreted as legal advice. The materials should serve as a general reference to facilitate more thorough research and analysis with the assistance of a competent professional who would have an opportunity to consider the facts of any particular situation. ALL RIGHTS RESERVED. All materials herein, other than the statutory and regulatory provisions, are copyrighted but may be reproduced as long as authorship is properly acknowledged.
I will probably publish this legal information in several blog entries so if you are interested, follow the blog titles to get all the information. I will place my own notes in italics to provide more information and as a "warning" that the information may not be as "accurate."
So here you go.
FOR THE RECORD: LEGAL ISSUES OF HEALTH MINISTRY (September 2008)
REALITY. There is no single answer for the same questions posed in different churches.
The question, "Can I be sued if…:" will always be answered "Yes." The real issue is, "Are we defensible?"
CHURCH STRUCTURE AND BELIEFS. Churches range from independent to connectional, conservative to liberal. Both structure and theology, as well as the personality of the minister, can affect how the parish health ministry is maintained and run. Additionally, parishioner expectations can impact the ministry. Before attempting to answer questions about how the parish health ministry is affected by legal issues, it is important to define the structure of the church and identify the key decision makers. A review of the insurance coverage is also critical.
Issues include:
1. Who has the ultimate decision-making power in your church?
2. What power does the governing board have, if any?
3. Are there religious/theological constraints on health care issues in your church regarding end of life decisions, birth control, family structure, etc.?
4. Who oversees the parish health ministry?
5. What is the relationship between health ministry personnel and the church?
EXPLORING ISSUES
VOLUNTEER. A volunteer is an individual who provides services without pay. Depending upon the type of work done and the amount of supervision, as well as any licensure the volunteer holds, liability issues may vary. A licensed individual providing services for which he or she is licensed is still held to the same standard of care as thought they were working for pay. However, under legislation passed to protect volunteers, the actions of the volunteer have to be extremely outrageous before they give rise to liability.
EMPLOYEE. An employee is defined as a person who works at the direction of, and for the benefit of, the employer. The employer has the right to supervise or set parameters for your work. Because of the concept of Respondeat Superior (the master is liable for the actions of his or her employee), an employee surrenders part of his or her autonomy in exchange for employment. However, a licensed professional still remains responsible to maintain the professional standards required by licensure; failure to do so may result in the revocation of your license.
INDEPENDENT CONTRACTOR. An independent contractor is a person who contracts with the provider to do certain services by virtue of the independent contractor's skills or licensure. The IC performs certain duties, but is ultimately responsible for the outcome of their own work. The employer generally does not have control of the work times and work process involved in the tasks, but only in the outcome. An IC must maintain his or her own liability insurance and worker's compensation and must submit proof of the same upon demand. Generally, the concept of IC can be resolved by looking at the degree of control the provider has with the independent contractor. Generally, parish health ministry workers do not fit into this category.
AGENT. An agent is someone who is authorized to act on behalf of the church or institution. The agent can be a volunteer, an independent contractor or employee. The scope of the agent's activities should be clearly delineated in writing; however, the appearance of authority often leads other entities to rely upon the agent's actions. This is a situation congregations need to have defined clearly in writing.
SCOPE OF EMPLOYMENT vs. SCOPE OF PRACTICE. An employer may limit the scope of practice of a licensed professional but may never enlarge it. An employer may not require you to do acts outside your scope of practice. And while the employer may limit the scope of your practice, it cannot limit the duty imposed upon you by virtue of your licensing. Therefore, it is critical to know both the scope of your practice and the actual duties of your employment. A job description is key to fully understanding the expectations of your responsibilities and liabilities.
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