Citation: Glazer, G. (May 4, 1999). "Legislative Column: Legislative and Policy Issues Related to Interstate Practice: Legal Opinion." Online Journal of Issues in Nursing. Available: www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/Columns/Legislative/LegalOpinion.aspx
AMERICAN NURSES ASSOCIATION
SUMMARY OF ANA LEGAL OPINION ON NCSBN MULTISTATE LICENSURE COMPACT
On June 8, 1998 the law firm of Jackson & Campbell prepared for ANA a legal analysis of the proposed NCBSN Multistate Lieensure Compact. Their memorandum focuses on the legal issues posed by the compact. A summary of some of the major points of that memorandum, prepared by ANA staff, follows. Readers are urged to examine the memorandum itself in its entirety. The legal analysis primarily focuses on legal issues posed by the compact; it does not draw conclusions on policy considerations.
As an interstate agreement concerning an area that has traditionally been a matter of state regulation (professional licensure), the compact would not require congressional consent. The compact does provide a means of addressing interstate nursing practice. There are other means of doing this as well, including expedited endorsement of out-of-state licensure. The goal of single licensure--that is, of a nurse needing to obtain only one license in order to practice in any state-would not be achieved for some time under the compact, until a substantial number of states enacted it.
The compact provides some advantages over the present licensing system by creating a more convenient system for nurses who practice telenursing, and by allowing for a more efficient information exchange. It does not appear to provide a significant advantage for those nurses who may practice physically in only a few states. Basing licensure on state of residence (as proposed by the compact) rather than state of practice poses some legal issues regarding jurisdiction and due process. While traditional professional licensing requirements typically focus on the location of the licensee's practice, basing licensure on state of residence appears to satisfy legal requirements with regard to these issues. Deciding the state on which to base licensure is a policy choice for all parties involved.
The issue of which state is the state of licensure under the compact is primarily a policy (not a legal) decision. Language in Article III of the compact creates some confusion regarding definitions of nursing between states, the practice of nursing other than providing patient care, and inconsistent use of terms regarding party, home and remote states. The disciplinary system outlined by the compact utilizes the existing system(s) in each state. While there is no change regarding nurses' substantive rights, the compact does create an additional burden for nurses since they may face adverse actions from more than one state arising from the same incident. In addition, the nurse may face different kinds of procedures and have different rights under the practice acts of the states in which she or he faces adverse actions.
The proposed Coordinated Licensure Information System (CLIS) is extremely broad in the kind of information it collects. It allows for reporting of any adverse action and any significant current investigative information yet to result in a remote state action. The operation of the CLIS is left to the formulation of procedures at a later date by the compact administrators--meaning that a broad range of issues related to the operation of the CLIS are left open by the compact.
The CLIS also presents numerous important issues concerning confidentiality, including who has access to the information and what limits may be placed on their access. The compact language allows states to "designate information that may not be shared with non-party states or disclosed to other entities or individuals without express permission of the contributing state." This implies that, unless a state has taken action specifically to designate information that may be not be shared, non-party states and "other entities and individuals" will normally have access to information held by the CLIS.
The compact language is unclear as to whether a party state that is not the nurse's home state and is not a state in which the nurse is practicing may take adverse action against that nurse. Constitutional due process considerations support the conclusion that it may not, but the compact is confusing on this point.
In answer to questions that have previously been raised, the legal analysis notes that:
- Implementation of the compact could probably be made contingent on the occurrence of some event, such as the start-up of the CLIS.
- The compact could include language stating that it specifically does not supersede other state laws. For example, there is currently such language in the Driver License Compact.
- While the compact is adopted on a state-by-state basis, it must be substantially identical from state to state. Add-on or other provisions adopted by individual states would have to be minor ones that would not create significant differences in the operation of the compact as enacted by various states.
June 9, 1998
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© 1999 Online Journal of Issues in Nursing
Article published May 4, 1999