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The Regulatory Dilemma Surrounding Interstate Practice

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Terri Gaffney, MPA, RN

Abstract

One of the changes with which all health care providers and regulators are grappling is the increasing use of telecommunication technology in the health care delivery system. Historically, regulation of health professionals has been a state-based function. However, the combination of telehealth and the current state-based model of regulation poses a potential problem of widespread unlicensed practice. This paper will offer an historical overview of health care regulation and identify four specific areas of concern related to the regulation of interstate nursing practice, namely, state sovereignty, discipline, information sharing and regulation of advanced practice registered nurses.

Citation: Gaffney, T. (May 31, 1999). The Regulatory Dilemma Surrounding Interstate Practice Online Journal of Issues in Nursing. Vol 4, No. 1, Manuscript 1. Available: www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/TableofContents/Volume41999/No1May1999/RegulatoryDilemma.aspx

Introduction

Advances in the health care delivery system have resulted in a myriad of changes. Like ripples created by a stone being tossed into a body of calm water, ripples of change continue to reverberate through the health care delivery system. One of the changes with which all providers are grappling is the increasing use of new telecommunication technologies in the health care delivery system. New technologies are raising questions related to the regulation of health care.

The Regulation Home Page defines regulation as an all-encompassing public policy term that has come to include different political, economic, and social issues and ideas. This article will focus on social regulations — those statutes or rules that are intended to protect citizen or worker health and safety, accomplish environmental and other aesthetic goals, and/or promote civil rights objectives.

A surge in the development of social regulations was noted in the late 1960's or early 1970's. However, in the past several years we have heard a public outcry to decrease the burden and cost of regulations. While the general trend in regulation is toward deregulation, health care has moved in the opposite direction — toward greater regulation.

The Problem

Historically in the U.S., regulation of health professionals has been a state-based function whereby each state or territory regulates the health care workforce within its geographic boundaries. Thus, health care professionals practicing within a state or territory are required to be licensed by the jurisdiction in which they practice. However, with the soaring popularity of telecommunication and other technologies being used to deliver health care services, practice is no longer limited by geographical boundaries. Telephone triage, telehealth consultation, and air transport nursing are just a few examples of how nursing practice is crossing state lines, either physically or via telecommunications technologies.

The American Nurses Association (ANA) (1998a) describes telehealth as the removal of time and distance barriers for the delivery of health care services and related health care activities. Communication technologies provide a means for health care professionals to practice across state lines. In many instances, this may mean providing services in states in which the professional does not hold a current license. Some telehealth employers and nurses may not regard the provision of telehealth services as "practicing," or may consider it impractical to obtain licenses in all jurisdictions in which patients who receive their services are located. Yet this provision of service in various states has posed a potential problem of widespread unlicensed practice, and presents a challenge for boards of nursing in states where patients receive services from nurses located in another state.

Regulatory Alternatives

Many suggestions have been offered to address the regulatory problems raised by telehealth. The Pew Health Professions Commission is one of many organizations that has spent a great deal of time studying health care work force regulation. In 1994 the Pew Health Professions Commission established a Task Force on health care Workforce Regulation to study the impact of regulation as it related to public safety. In 1995 this Task Force proposed ten recommendations for regulatory improvement (Finnocchio, Dower, Blick, & Gragnola, 1995).

Pertinent to this debate was the Task Force's recommendation that states should standardize entry-to-practice requirements and limit requirements to matters of competence of health professionals in order to facilitate the physical and professional mobility for the health professions. To facilitate such mobility, the Task Force further suggested that states adopt mutual recognition of licensure by endorsement legislation, even without uniform entry-to-practice standards.

More recently, the Pew Commission (Finnocchio, Dower, Blick, & Gragnola, 1998) has exchanged its state-based approach of health care work force regulation for a national approach. In an October 1998 report the Pew Commission noted that health care markets had become nationally focused, and called for Congress to enact legislation to facilitate professional mobility and practice across state boundaries.

In addition to the Pew Commission, the Western Governors’ Association (1998) is playing a strong role in this regulatory quandary. After spending extensive time exploring this issue, the Western Governors’ Association noted that current state licensure laws do not facilitate interstate movement or telepractice; nor do they offer sufficient redress to consumers in the event of substandard telepractice from outside their jurisdiction. Clearly, health care work force regulation is garnering more attention, particularly in light of telehealth. Both regulatory bodies and professional associations are studying the issue and promoting various regulatory approaches.

While the Pew Commission (Finnocchio et al., 1998) is currently promoting a national licensure approach, other organizations continue to refine the state-based system of health care work force regulation. The Federation of State Medical Boards adopted a model act requiring a limited telemedicine license in each state where the patient resides. In other words, physicians would continue to be licensed in the state in which they physically practice as well as be required to obtain a limited license (telemedicine license) for patient consultations in states where these patients are located.

On the other hand, the American Medical Association rejected the limited license approach and continues to advocate for the current state-based model. Taking a similar stand, the American College of Radiology recommended that physicians who practice teleradiology should obtain licenses in each state in which the patient is located. The physical therapy community also sees value in maintaining the current system. The Federation of State Boards of Physical Therapy, in collaboration with the American Physical Therapy Association, recently proposed an approach to regulatory issues pertaining to telehealth’s application to physical therapy that can be achieved without great modification of the current state licensure model. Cohan (1998) discusses these three approaches to the health care needs of the rural community.

And finally, the Department of Health and Human Services, Health Care Financing Administration (HCFA), 1998, has developed an approach for reimbursement of telehealth services that offers an interesting approach to this regulatory dilemma. In instances of telehealth consultations, HCFA has determined the site of practice to be the site where the provider is located. For example, when a patient physically travels to a provider’s office for an examination, care is delivered where the provider is located. When health care services are provided via telecommunications, the same approach holds true. Should the patient and provider be in separate geographic locations, the patient travels via telecommunication technologies to the site of the provider.

The Compact Solution

The National Council of State Boards of Nursing (NCSBN) (1997), a private association of state regulatory agencies, has proposed a mutual recognition model of nursing licensure, referred to as the Nurse Licensure Compact, to be implemented through interstate compacts. Under this concept, issues contained within the boundaries of a single state would still be subject to the laws of that state. However, nurses who hold a license in one state would be able to practice in any state that participates in the compact, provided they follow the laws and regulations of the state in which they practiced.(Note: Italics denote changes made September 2001)


The Nurse Licensure Compact, an interstate compact, is an agreement between two or more states to coordinate activities associated with nurse licensure.

The Nurse Licensure Compact, an interstate compact, is an agreement between two or more states to coordinate activities associated with nurse licensure. Although nurses are not usually schooled in the legal implications of interstate compact administration, it is imperative that all nurses understand the implications a regulatory change, such as a mutual recognition model of nursing licensure, may have on consumers, nurses and the profession.

Reasons for states to form interstate compacts include activities such as the allocation of debt, establishment of an interstate port, or construction of a bridge spanning interstate waters. Interstate compacts are formal, binding contracts, entered into voluntarily by two or more states, that require consent from Congress under the compact clause of the U. S. Constitution. Because each state surrenders some measure of sovereignty when it enters into a compact, the compact provisions likely would supersede conflicting state statues. The jury, however, is out on whether telecommunication across state lines is true interstate commerce.

According to the terms of the compact proposed by the NCSBN, a nursing license would be issued by the state in which the nurse resides. Any state entering into the compact may grant a multistate privilege for a nurse to practice outside their state of residence; however, the nurse will be held accountable for complying with all laws governing nursing practice in the state in which the client is located. Although the remote state (compact state) may discontinue the multistate privilege, the state of residence (home state) retains authority to take disciplinary action against the license.

This mutual recognition model proposed by the NCSBN both presents a creative solution for nursing regulation and raises legal and policy issues that need to be addressed. Issues to be considered range from the cost of financing such a complex model to confidentiality of information and workforce and political considerations.

Issues Related To Interstate Practice

This article will address four specific issues related to interstate practice, namely, state sovereignty, discipline, information sharing and regulation of advanced practice registered nurses.

State Sovereignty

The onset of nursing regulation in the U.S. dates back to the early 1900's. Nurses advocated for a registration process as a means to establish recognition for nurses and to protect public health and welfare. The first state to enact a registration law was North Carolina in 1903. New York, New Jersey and Virginia soon followed.

Although regulating health care providers is within the powers of state governments, the state's authority is limited. The U.S. Constitution establishes that

  1. the regulatory scheme must be a "rational relationship" to a valid purpose and
  2. the regulatory scheme must provide a person who is denied the right to practice the profession certain procedural rights.

A "rational relationship" is established when the following conditions are met (Deloughery, 1991). First, the regulatory law must be intended to protect the public from licensees that are incompetent or unfit to practice. And second, regulation must be deemed to be a "reasonable means" of accomplishing the goal of public protection.

The Nurse Licensure Compact offers a convenient way for nurses to practice in a party state (a state participating in the compact) without obtaining another nursing license. However, it remains unclear whether the model adequately protects the public, particularly when the state (as well as the public) has no means of determining in which of the 50 states a nurse is practicing at any point in time.

One public protection concern arises when nurses practicing remotely in another state are not held to the same licensure standards as those who are licensed in that state. States currently establish qualifications for licensure which may include residency restriction, education criteria or continuing education requirements. Nurses licensed in a party state (a state participating in the compact) but practicing, either physically or electronically, in a remote state would be exempt from qualifications established by the remote state. Additionally, in some instances a party state could take action to limit the nurse's ability to practice in a remote state, but if the home state failed to take action against the nurse's license, the nurse would be free to practice in any other party state. Each of these factors infringe on the ability of the state to establish a regulatory means to protect the public, thus impacting state sovereignty.

Discipline

The Constitution guarantees that certain procedural rights be provided to persons denied the right to practice their profession. Generally the compact allows any party state (a state participating in the compact) to take action against the multistate licensure privileges of any nurse practicing in that state, meaning that a state can withdraw this privilege to practice in that state. However, only the home state many take action against the license itself (i.e., revocation or suspension). Hence a nurse may experience two disciplinary processes, one related to the multistate licensure privileges and a second related to privileges in the home state. It is important to ensure due process and to avoid unfair burdens on nurses attempting to defend their ability to practice safely. The right of the individual nurse to a fair hearing of any disciplinary action must be preserved without the nurse incurring unreasonable or unfair burdens, such as financial costs, in pursuing this right.

Information Sharing

Another component of the Nurse Licensure Compact is the establishment of a Coordinated Licensure Information System (CLIS) to be operated by a nonprofit organization comprised of state boards of nursing. This data bank would contain personal information, licensure information and disciplinary information.

Currently, the NCSBN maintains a disciplinary data base. Although states may choose whether or not to report adverse actions taken against nurses, a number of states do contribute disciplinary information to the data bank. The benefit of such a mechanism is the sharing of information between state boards of nursing. Thus nurses who are disciplined in one state cannot easily relocate to another state to practice.


While the disciplinary data base has great merit, concerns related to the privacy and confidentiality of information held by a new data system remain.

While the disciplinary data base has great merit, concerns related to the privacy and confidentiality of information held by a new data system remain. Since there is a trend to make licensure information more publicly accessible, nurses should be interested in the data elements contained in the CLIS and what entities, other than state boards of nursing, would be entitled to access CLIS data. As with all information date bases, nurses deserve some assurances regarding the range of information that will be available through the CLIS, and to whom it will be available, particularly since personal information such as home address and telephone number will be contained within the data base. An ANA House of Delegates Backgrounder Report (1998b) noted that the rapid explosion of communication technologies has already posed a significant challenge to a number of governmental and non-governmental bodies regarding public access to information.

Regulation of Advanced Practice Registered Nurses

Finally, many questions remain as to the effect of the compact on advanced practice nursing. Currently, the compact provides multistate recognition for the practice of RNs and LPNs only, not advanced practice registered nurses (APRNs), who are educated and certified at a more advanced level than are RNs and LPNs. Although APRNs are not included in the compact at this time, the NCSBN is currently developing a separate compact to address APRN practice.

Perhaps, however, a better approach to resolving the diverse education and certification requirements for APNs are uniform licensure requirements. As Minarik (1999) states, "Rather than adopting the complex approach of interstate compacts for the regulation of advanced practice, nursing should seize the opportunity to promote a uniform acts model of licensure for APNs" (p. 93). Uniform acts are not contractual agreements between states, but rather guides for states that wish to enact individual legislation. Such an approach maintains state sovereignty while addressing the education, certification and scope of practice issues that currently vary from state to state for APRNs.

Nursing Community Involvement

Throughout the multistate regulation development process there have been concerns about the effect of an interstate compact on nurses and the speed with which the interstate compact model was being moved. Specifically, when the NCSBN adopted this new model of licensure, it had conducted its work on this project largely without the input of the broader nursing community. Given the national and state implications of an interstate compact on all nurses, and quite possibly other licensed occupations, it was recognized that major open discussion and debate were needed. Therefore, in October, 1997, the ANA co-hosted a meeting with the NCSBN to provide the nursing community with an opportunity for discussion and comment surrounding this new model of multistate regulation via interstate compacts. Discussions between the NCSBN and national nursing organizations are continuing.

Conclusion

Many factors, including but not limited to telehealth, workforce mobility, and globalization, are affecting the health care regulatory system. Over the past several years, the nursing community has been exploring and debating new models of regulation of interstate practice. This article has reviewed the historical context related to this exploration and addressed specific issues relevant to new modes of regulation, namely, state sovereignty, discipline, information sharing, and regulation of advanced practice nurses.

Whether or not one is an advocate of the Nurse Licensure Compact, discussion centered on this model has led to a more informed nursing community. Although the process is far from complete, nursing should be applauded for recognizing the need to evaluate the current regulatory model that has been in place for nearly 100 years and for pursing changes in the system that would improve access to high quality, cost effective nursing services.

Author

Terri Gaffney, MPA, RN
E-mail: 

Terri Gaffney is a registered nurse currently serving as the Director of State Government Relations at the American Nurses Association in Washington, DC. She manages a department responsible for tracking and monitoring state legislation and regulation that impacts nurses and nursing practice and assists state nurses association develop strategies to effect legislation and regulation. Terri has been invited to testify before several state legislative committees. In addition, she represents the American Nurses Association at national meetings of state legislative bodies such as the National Conference of State Legislatures.

Terri also serves as a member of the Board of Directors of the National Health Policy Council and on the Associates Advisory Committee for the Council of State Governments. In addition, Terri recently completed her four year term on the Virginia Board of Nursing. Her other professional activities include active membership with the American Society of Public Administrators and Women in Government Relations. Prior to coming to ANA, Terri served as Associate Legislative Director for a veterans service organization.

Terri received her BSN from the Medical College of Virginia in Richmond, Virginia and her MPA from Virginia Polytechnic Institute.

References

American Nurses Association. (1998a). Competencies for Telehealth Technologies in Nursing. Washington D.C.: Author.

American Nurses Association. (1998b). Multistate Regulation of Nurses: House of Delegates Backgrounder Report. Washington D.C.: Author.

Cohan, P. (1998). Telemedicine aims to sustain health care in rural communities. Firstline 5 (8), 1-3.

Deloughery, G.L. (1991). Issues and Trends in Nursing. St. Louis: Mosby.

Federal Register. (June 22, 1998). Medicare Program Payment for Teleconsultations in Rural Health Professional Shortage Areas. Department of Health and Human Services, health care Financing Administration. 63(119), 33885.

Finnocchio, L.J., Dower, C.M., Blick, N.T., & Gragnola, C.M. (1995). Considering the Future of health care Workforce Regulation. San Francisco: Pew Health Professions Commission.

Finnocchio, L.J., Dower, C.M., Blick, N.T., & Gragnola, C.M. (1998). Taskforce on health care Workforce Regulation - Strengthening Consumer Protection: Priorities for health care Workforce Regulation. San Francisco: Pew Health Professions Commission.

Minarik, P.A., Price, L.C. (1999). Multistate License for Advanced Practice Nurses. Nursing Outlook 47(2), 93-94.

National Council of State Boards of Nursing. (August, 1997). Boards of Nursing Adopt Mutual Recognition Model. Available: www.ncsbn.org/search/documents/accufacts/newsreleases/nr970825.asp

The Regulation Home Page. (1999). What is Regulation? Available: www.regulation.org/whatisreg.html

Telemedicine Report: Federation of State Medical Boards (1996) Telemedicine. Available: www.fsmb.org/telemed.htm

Western Governors' Association. (1998). Telemedicine Action Update. Denver: Author.


© 1999 Online Journal of Issues in Nursing
Article published May 31, 1999


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