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Letter to the Editor

Legislative and Policy Issues Related to Interstate Practice: NCSBN Letter

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Citation: Glazer, G. (May 4, 1999). Legislative Column: "Legislative and Policy Issues Related to Interstate Practice: NCSBN Letter." Online Journal of Issues in Nursing. Available:

May 4, 1998
The Honorable__________
Attorney General/Governor
Office Of
1234 Main Street
Your City, YS
RE: The Nurse Licensure Compact

It has come to our attention that you recently received correspondence from the National Association of Pediatric Nurse Associates and Practitioners ("NAPNAP") regarding the Nurse Licensure Compact ("Compact") developed by the National Council of State Boards of Nursing ("NCSBN"). The NAPNAP letter contains substantial factual errors and mischaracterizes both the intent and the effect of the proposed Compact. On behalf of the NCSBN, we would like to set the record straight and urge you to support the adoption of the Compact in your state.

The NCSBN is comprised of the nurse licensing boards of all the 50 states and the territories. We are a non-profit corporation whose mission is to lead in nursing regulation by assisting Member Boards, collectively and individually, to promote safe and effective nursing practice in the interest of protecting public health and welfare. Over the last two years, the NCSBN has painstakingly examined a number of deficiencies in the current Licensure system. The proposed Compact was developed to correct these deficiencies. The Member Boards, acting through the NCSBN Delegate Assembly, approved the language of the Compact in December, 1997 with the intention that it be implemented in all the states.

State nurse licensing systems have worked effectively for nearly 100 years in regulating the practice of nursing within the geographic boundaries of a particular state. However, the evolution of integrated healthcare systems, the increased mobility of nurses, and modern communication technologies have substantially altered the way nursing is practiced. It is estimated that over 12 percent of all nurses now hold more than one state license. Of greater concern is the unknown number of nurses who are practicing in multiple states who may not have appropriate state licenses.

The current licensure system is ill-equipped to respond to the increased role of nurses in interstate practice. This is particularly true in the fast growing field of telenursing. According to the Wall Street Journal, 24 hour telephone nursing service was available to 2 million Americans in 1990, 35 million Americans in 1997, and projected to over 100 million Americans by 2001. In most cases, these telehealth services operate nationwide as a benefit to the enrollees of private and public health benefit plans. They are often staffed through regional or national call centers. Unfortunately, current licensure laws do not adequately address whether states have the authority to regulate the practice of a nurse who is physically located in another state. Simply asserting jurisdiction over these non-resident practitioners has thus far proven ineffective. An agreement between the states to coordinate enforcement activities is necessary to protect residents of our respective states.

The Compact will give state boards the tools they need to effectively protect their citizens. Most telehealth nurses do not obtain licenses in all 50 states. In fact, most are licensed only in the state where they are employed. If an adverse incident arises, state boards have limited tools at their disposal to sanction an out-of-state nurse. The Compact provides the authority and means to accomplish this objective. This is one of the fundamental reasons why we believe that the proposed Nurse Licensure Compact is essential.

In addition, the increased mobility of nurses and the rise of multistate nursing has brought forth the need for increased coordination on initial licensure activities. While the requirements for obtaining a nursing license are largely standardized throughout the United States, the efficiency and effectiveness of the administrative process associated with obtaining multiple licenses has not been addressed. For example, dozens of different states may perform the same administrative tasks associated with verifying the background, education, and training of a single telehealth nurse. The Nurse Licensure Compact would eliminate this duplication and permit states to focus their resources on enforcement activities.

Finally, the assertion that the Compact would lead to a "lowest common denominator" of licensure standards is completely false. The Compact is specifically designed to prevent "forum shopping." Under the Compact, nurses in participating states have no choice - they must obtain their license from the state in which they reside - the home state. There are no other options. Even if nurses could forum shop, states have made substantial movement towards standardizing the requirements for nurse licensure. Morever, all states participating in the Compact retain the ability to rescind, at any time, the nurse’s authority to practice in their state.

Change is difficult. However, our world is changing. Our regulatory systems must be adapted to meet the challenges of the 21st century. We have attached a Fact Sheet that corrects the other misunderstandings contained in the NAPNAP letter. We have also forwarded a copy of this document directly to NAPNAP and have asked to meet with the executives of that association in order to clear up their misconceptions regarding this extremely important Compact. Please feel free to contact me if you require further information, or have additional questions.

Sincerely,


Thomas Neumann, MSN, RN
President


NURSE LICENSURE COMPACT:
Setting the Record Straight

Licensure standards:
1. Claim: Licenses would be issued by the nurse’s state of residence, rather than by the state where she works. This reduces nurses’ current burden in obtaining licenses only where a nurse works in two states in which she does not live and all three states are members of the Compact.

Fact: Licenses would be issued by the nurse’s state of residence. The Compact would substantially reduce the licensure burden on every nurse that maintains a license in more than one state. Twelve percent of all nurses maintain multiple licenses. The effect is particularly dramatic for telenurses, who may practice in all 50 states. For the remaining nurses, this Compact provision would have no effect as most nurses live in the state in which they work.

2. Claim: States that join the Compact would have to accept the licenses issued by the home state of the nurse.

Fact: Participating states agree to accept the license issued by the nurse’s home state. However, each state participating in the Compact reserves the right to revoke the nurse’s privilege to practice in their state. See Article V (c) regarding adverse actions and the definition of "remote state action" in Article II (k).

3. Claim: Consequently licensure standards for party states effectively would be set by the party state that had the lowest standards.

Fact: This is impossible under the Compact. Licensure is tied to the state of residence rather than the state of practice to prevent forum shopping. While nurses might practice or claim to practice in a multitude of states, they can have only one state of residence. Basing licensure on residence is the best way to prevent nurses from shopping for the state with the lowest standards or fees.

In addition, it should be recognized that the standards for nurse licensure are generally uniform from state to state. Every state now requires nurses to complete an accredited or approved program and to obtain the same passing score on a standardized national exam.

4. Claim: Nurses could come into a party state from states with lower licensing standards and compete with nurses in the state (or replace them during a strike) without having to get a license from it.

Fact: First, any nurse who moves from one Compact state to another is required to apply for and receive a license from her new state of residence. See Article IV. Second, the Compact does not modify collective bargaining rights or obligations of either nurses or health care entities. Finally, as indicated above, the standards for nurse licensure are generally uniform from state to state.

5. Claim: States with more stringent licensing standards would be likely to respond by re-examining their practice acts for RNs and APRNs. The Compact permits the state where the patient is located ("the remote state") to enforce its own practice act even if a nurse has a Compact license. To offset the effect of easier licensing standards, states might put new restrictions on what an RN or APRN could do.

Fact: State nurse practice acts are generally uniform in the minimum qualifications required to obtain a license. Predominantly, the variation arises in documentation and other administrative requirements. Therefore, the fear of the "least common denominator" problem is unfounded. Moreover, the vast majority of nurses practicing in a state will reside there and will have to meet all local licensure requirements.

6. Claim: If a state restricted the practice of RNs and APRNs (probably by removing one or more permitted activities from the law), those activities would be taken over by physicians or by health care professionals who are not subject to a practice act or perhaps even a licensure law, including unlicensed assistive personnel.

Fact: This claim is totally unwarranted and only serves to frighten RNs and APRNs. First, with regard to APRNs, the Compact does not affect advanced practice nursing. Unlike RNs and LPNs, there remain significant differences in scope and standard of practice for APRNs. In recognition of this fact, the Compact does not alter state requirements for these nurses: standards for APRNs will continue to be set exclusively by individual states. Second, with regard to RNs and LPNs, the standards have become largely uniform among the states. Therefore, states are extremely unlikely to change their standards for practicing nursing as a consequence of entering the Compact. Third, even if the state revised its practice act, no "unlicensed assistive personnel" could take the role of nurses as they would be practicing nursing without a license.

Telenursing
7. Claim: Telenursing would not be facilitated by the Compact. A nurse practicing telenursing would have to comply with the practice act of each state in which her patients were located.

Fact: The purpose of the Compact is not to assist or inhibit the practice of telenursing. The goal of the Compact is to provide an efficient and effective system of regulating modern nursing practice. In fact, both nurses and participating states would be relieved of duplicative administrative requirements to obtain multiple licenses in each Compact state. Moreover, in order to adequately protect patients, telenurses would be required to be informed of and comply with the practice acts of the state in which the patient is located. Under this approach, each state retains its public protection role. The result is significant time and cost savings for the nurse, increased enforcement ability for the states, and increased access to qualified nursing care for consumers.

8. Claim: Nor would efforts to protect quality be enhanced. States would not know if a telenurse was practicing there; they would find it difficult to enforce their practice acts and to review the quality of care provided by the telenurse.

Fact: States currently do not know if a telenurse is practicing on their residents. Moreover, even if they did discover a problem, they have limited enforcement options. The only way to improve the current situation is for states to enter into agreements with one another to increase enforcement efforts. At its heart, that is the role the Compact serves.

The Coordinated Licensure Information System
9. Claim: The Compact would create a new data bank for information about adverse actions taken against nurses (the Coordinated Licensure Information System). This would be a third data bank, in addition to the National Practitioners Data Bank (only malpractice settlements on behalf of nurses must be reported to the NPDB) and the new data bank (the national health care fraud and abuse data collection program) created under HIPAA, to which adverse licensure actions taken against nurses will be reported.

Fact: The concept of a data bank of information about adverse actions against nurse licenses is not new. The NCSBN has operated a Disciplinary Data Bank ("DDB") since 1981. The Coordinated Licensure Information System ("CLIS") will include the DDB. In addition, while some of the data tracked will be included in the NPDB, the CLIS is designed to provide services that the NPDB never envisioned. The CLIS is designed to further enhance enforcement efforts by providing states with current information on licensed nurses.

10. Claim: The Compact would require reports of adverse actions taken against a nurse. This is defined to include not only actions taken by nurse licensing boards, but also by any "other authority," meaning courts and other regulatory bodies. It seems that administrative or judicial actions with respect to a nurse’s taxes, traffic violations, family disputes, etc. would go to the CLIS.

Fact: The CLIS is intended to maintain information that is essential for the regulation of nursing. It does not impose reporting requirements on any other state agency or entity. However, if a state licensure board, through its licensure or discipline process, obtains information relevant to the practice of nursing then it must be reported to the CLIS. Article VIII specifies that the Compact administrators will develop uniform rules regarding implementation of the Compact, including data exchange requirements. The administrators can spell out more fully those data elements to be included.

11. Claim: The Compact requires reporting not only of adverse actions, but also "significant current investigative information" that has not yet resulted in an adverse action. Thus a report would be made of derogatory information before it had been tested and even before any determination had been made.

Fact: The Compact is designed to facilitate the enforcement efforts of all states. Under the Compact, state licensure boards will have information on the discipline of nurses earlier in the process. However, the due process rights of all nurses, as well as the due process obligations of each state, are unchanged by the Compact. Thus, no state can discipline a nurse without undertaking its own investigation into the facts of the situation, and applying those facts to its own nurse practice act. The information sharing is designed to provide additional protections to patients by resolving serious discipline issues quickly.

12. Claim: The CLIS does not have the protections provided by the NPDB. It does not specify who may query the data bank and whether access would be limited. It does not give the nurse the chance to know what information about her is in the data bank and to correct it. It does not impose restrictions on who can access the data bank and what use can be make of the data. It does not have confidentiality protections.

Fact: The CLIS will have very strong confidentiality protections. The CLIS will be structured so that access to non-public information is limited to licensure officials, relevant law enforcement agencies and public officials that have a legal right of access, as it is under current law. Public information regarding the licensure status of nurses will continue to be accessible as it is under current law. To correct misinformation under the current system, nurses must communicate directly with each individual state in which they are licensed. The CLIS will assist nurses in more quickly identifying and correcting any erroneous information.

13. Claim: In addition to reports of adverse actions to CLIS, the Compact requires the heads of the licensing boards to exchange "any information and documents including but not limited to, a uniform data set of investigations, identifying information, licensure data, and disclosable alternative program participation information to facilitate the administration of this Compact." Thus data would be exchanged on an on-going basis, and not merely when a nurse applied for a license, as it would through CLIS.

Fact: Currently, state licensure officials exchange information on unsafe or incompetent nurses and licensure status of individual nurses on an ad hoc basis. The Compact formalizes this activity by assuring access to timely and accurate information as part of the CLIS to facilitate protection of patients regardless of the nurse’s location.

Definition of Nursing
14. Claim: The Compact muddles the definition of nursing. It does not actually define the term, except to say that a nurse is an RN or LPN "as those terms are defined by each party’s state practice laws." But in defining other terms the Compact confuses what nursing is. It assumes that there can be "the practice of nursing not involving a patient" and at the same time inconsistently refers to the "recipient" of such nursing practice. Elsewhere it says, "the practice of nursing is not limited to patient care, but shall include all nursing practice as defined by the state practice laws of a party state."

Fact: The Compact does not "muddle" the definition of nursing: it makes no modification to the individual state definitions of nursing. See Article II (h). There is no confusion created by this definition: it is only necessary to look to the individual nurse practice act to find it.

Most state definitions encompass nursing practices that are broader than the provision of care to patients such as case finding and referral, and administration, supervision, delegation; evaluation and teaching of health and nursing practice. The purpose of the Compact language is to ensure these other, critical aspects of nursing are included within the scope of the Compact. Thus, it was felt that in order to recognize the broadest scope of nursing activities, the Compact should not be drafted to include only those aspects of nursing involving patient-care activities. Nurses engaged in non-patient activities such as education and utilization review that are covered by state practice acts should also receive the many benefits of the Compact.

In addition, the Compact recognizes that state legislatures have felt the need to include these non-patient-based nursing activities within their definitions in order to adequately protect their public. The Compact is designed to enhance this public protection role, and be respectful of each state legislature’s definition of the practice of nursing; it therefore retains each state’s definition.

15. Claim: The confused definition implies that a state could define someone who does not do patient care as nurse. If a home state, for instance, defined a nurse as someone who did health education (and only that), would all other states in the Compact have to let that nurse practice real nursing? How would they know she was a nurse only for education?

Fact: As indicated above, the Compact does not modify or "confuse" the definition of nursing. The Compact does nothing to alter an individual state’s definition of nursing under the state practice act. Some state practice acts define nursing to include traditional nursing practice as well as health education, and other non-patient-based activities. The claim by NAPNAP implies that there is a wide variation in state’s definition of nursing, as well as requirements for practicing nursing. There are no state practice acts that define a nurse as someone who performs "health education (and only that)." Nor are there any state practice acts that permit the practice of non-patient services with an inferior educational background. The premise behind this perceived problem simply does not exist.

Expanded Regulatory Authority
16. Claim: The Compact would expand the authority of nurse licensing boards by giving the board in each party state authority to issue subpoenas. In addition, subpoenas issued by one state’s licensing board would be enforceable in other party states.

Fact: The Compact ensures that subpoenas are enforceable in other party states in order to address the issue of cross-state practice and telenursing. Currently, states have a difficult time establishing jurisdiction over a nurse who has never physically entered their state. This would enhance the state’s power to discipline unsafe or incompetent nurses and to protect consumers.

17. Claim: The Compact would give licensing boards in party states authority to promulgate "uniform rules to facilitate and coordinate implementation of this Compact" without further action by the legislature. This would give the licensing board in a state authority to issue regulations on the broad range of matters affected by the Compact.

Fact: Few if any state statutes are self-executing. This provision of the Compact simply acknowledges that implementing regulations are necessary, and that they will need to be uniform due to the multistate nature of the Compact. The regulations cannot exceed the scope of the underlying statute, and must be promulgated pursuant to state administrative procedure acts.

18. Claim: It would also give the head of the licensing board in each party state authority to "formulate necessary and proper procedures for the identification, collection and exchange of information under this Compact." Since data are to be reported not only by licensing boards but also by other regulatory agencies and by the courts (see Item 10), the Compact machinery might try to regulate data collection and reporting by other people and entities - nurses themselves and employers (and even coworkers and doctors?)

Fact: As noted under Point 10, above, this claim is a misinterpretation of this provision of the Compact. The Compact does not contemplate data collection from sources outside of the nurse licensure boards.

Costs and Fees
19. Claim: The Compact authorizes the licensing boards to recover from a nurse who is the subject of an adverse action the cost of the proceeding, including investigations.

Fact: The Compact permits, but does not mandate licensing boards to recover investigation and administrative costs from nurses. In addition, if other state law or constitution forbids such activity, a state would be barred from it.

20. Claim: There is no provision for financing the CLIS or the Compact more generally. It is unclear if its operations will be funded through general state revenue or if the costs will be passed on to nurses through license fees.

Fact: In the aggregate, the Compact is expected to reduce the net cost of licensing and enforcement. This is true because the time and expense spent on duplication of services between states is minimized. Each state will assess the total fiscal impact of the Compact and develop the mechanisms within that state’s structure to address both revenues and expenses. The general fund, fees and other innovative means of increasing revenue and reducing expenses will certainly be considered.

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© 1999 Online Journal of Issues in Nursing
Article published May 4, 1999

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