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Letter to the Editor

Multistate Licensure: Premature Policy

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Susan E. King, MS, RN

Abstract

A new model for nursing licensure which will weaken state licensure standards has been proposed by the National Council for State Boards of Nursing. This proposal has come forward in the absence of discussion and debate within the nursing profession and without supporting data to document the need for a drastic change in licensure. Nursing organizations, concerned with both consumer safety and the preservation of the standards of nursing practice, are questioning whether this model is acceptable, appropriate, affordable and workable. Specific policy implications and concerns are discussed, and the policy criteria adopted by the ANA House of Delegates in June, 1998, are presented.

Citation: King, S.E. (May 31, 1999): Multistate Licensure: Premature Policy Online Journal of Issues in Nursing. Vol 4, No. 1, Manuscript 3. Available: www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/TableofContents/Volume41999/No1May1999/MultistateLicensure.aspx

Introduction

Your patient is communicating with you by phone asking for advice about a persistent cough. You make recommendations to her from your practice setting in Oregon but she is across the border in Vancouver, Washington.

You practice in a home health agency that is part of an HMO with subscribers in four states. In any given day, you may see patients in two or three different states.

You are employed by a multistate managed care organization which operates a 24 hour nurse advice service. On any given shift, you may be contacted by subscribers in more than 10 states. The health plan intends to implement interactive video technology for the advice service in the near future.

All of these scenarios describe what has come to be known as interstate practice or the delivery of professional services across a state border. The first two are familiar to many nurses as long established practice. The third is a more recent phenomenon resulting from the emergence and growth of multistate health care organizations and technology which allows remote audio and even video communication.

Interstate practice has taken a place at the top of the list of priorities for the nursing profession during the last two years. This rapid emergence as a major issue has occurred for several reasons including the recognition that interstate practice is occurring, the availability of technology to deliver services distant from the provider, and the emergence of multistate providers. Primarily, however, in nursing the issue has been driven by the development of a regulatory model by the National Council of State Boards of Nursing which can be applied to cross-border practice. This model, called mutual recognition or multistate licensure, proposes a solution to an as yet undefined problem which, at this time is not widely supported by the profession.

The adoption of the mutual recognition model by the NCSBN offers an opportunity for professional organizations to consider the broader issue of interstate practice and all of its implications including whether and how that practice should be regulated. In this consideration, many concerns have been raised about the NCSBN model and, as a result there is a growing interest among states and organizations in exploring the issues related to interstate practice by health professionals.

What is Mutual Recognition/Multistate Licensure?

The model is likened to a drivers license because nurses would hold only one license — in the state of residence — but have the privilege to practice in any state which signs onto a compact or agreement to allow this practice. A compact has been developed which must be adopted by legislative action in each state which desires to be a part of this regulatory approach.

The mutual recognition model makes state borders virtually irrelevant for both telehealth and physical practice. Any nurse from a compact state may practice via telephone or in person in any other compact state. There is no requirement that any of the compact states know that he/she is caring for its citizens.

Only the state of licensure or home state may discipline a nurse’s license but other party or compact states may limit the multistate privilege of a nurse. The model relies on a centralized data base, currently in development and called NURSYS, to provide rapidly accessible information about licensure and discipline of nurses to state boards of nursing.

Concerns Regarding the Mutual Recognition Model

In the author’s experience, which has included meetings and discussions with nurses from every state in the U.S.A., most nurses feel positively about the mutual recognition model when it is initially described. It is a relatively simple model which seems familiar given the analogy to the drivers license. Inevitably, however, when professionals begin to ask questions about how the model will be implemented or administered, questions and concerns begin to emerge. The major concerns expressed by nurses across the country are described below.

The standards of a state will be weakened

This concern would be a fact if both Oregon and California were compact states. California currently allows licensure for individuals who successfully pass the licensure exam for RN and LVN but have not had formal nursing education. Under the current state-based licensure system, Oregon does not allow those individuals to endorse into the state. With mutual recognition, those individuals could practice in Oregon on their California license. Additionally, North Dakota, which is the only state requiring a Baccalaureate degree for RN licensure, would be unable to enforce this standard on out-of-state nurses.

Many states have provisions in statute or rule which address continuing competency. Some require continuing education, while others require practice. Those provisions, just like the initial requirements described above, would not be enforced on out of state nurses thus creating inconsistently applied standards. It would be possible and likely that a nurse, living on the border of two or more states, could practice exclusively in a state where she/he never holds a license. This reality eventually, in the author’s opinion, will lead to a discussion by legislators and regulators about whether a state-based system should be continued or whether a national or regional license would be more appropriate.


... acceptance and implementation of the mutual recognition model may well lead to inadvertent policy decisions that the nursing profession does not support and that may not be in the best interest of consumers.

Thus, acceptance and implementation of the mutual recognition model may well lead to inadvertent policy decisions that the nursing profession does not support and that may not be in the best interest of consumers. Most of those who continue to support the NCSBN compact do so on the basis of its effect on interstate practice and mobility of nurses. There has been very little exploration of how the implementation of this proposal might relate to federal action.

Consumer protection is not improved with this model

The developers of the mutual recognition model claim that it is needed to improve public protection by regulating telehealth. The NCSBN initially cited the increased use of technology to provide care remote from the physical location of the nurse as the reason for its development of the model and desire for rapid implementation across the country. On examination, however, the mutual recognition model offers no improved consumer protection sufficient to warrant such a major change in nursing licensure.

An example will help to explain this assertion. Currently, some telehealth services operate in multiple states. In some cases, consumers accessing these services are unaware of the location of the center which is contacted. The consumer may believe that the service is located in her/his state when that is not ever the case. Further, consumers do not know the identity of the staff providing advice. In the event that inappropriate advice is given and the consumer attempts to pursue it, it would be difficult, if not impossible to determine which nurse had provided the service. Although the consumer knows what number he called, and could perhaps eventually find out who the contact nurse was, there is no guarantee. Further, not all advice lines keep logs of contacts and when the consumer is also anonymous, tracking the specific details of any incident would be virtually impossible.

The policy question raised by this scenario calls into question state-based licensure. If licensure is not tied to the presence of the nurse, that is, licensure tied to the physical location of the nurse, why have state-based licensure? Why not implement the Veterans Administration (VA) model in which a nurse may practice in any VA setting by having a license in any state? An examination of the evolution of nursing licensure standards reveals an answer to this question.

Standards of practice and regulation have arisen out of individual states. Generally, those standards that improve consumer protection and advance the ability of nurses to provide care to the public start in one state but are adopted by other states as their value is understood and adoption becomes politically possible. Thus, standards are "tested" on a state by state basis. Nurses who are residents and licensees of a state working with their regulatory agency can exert the necessary pressure on their state legislature to change standards. It is unclear how this process would work if some nurses are exempted from the standards. How would their efforts be judged? Also, if implementation of mutual recognition becomes a reality and a national or regional license is substituted for the state’s, how will nurses be able to change standards? Exerting the necessary political force on an agency of the federal government or some new regional entity would be much more difficult than dealing with one's state legislator, with whom the nurse in a state can have a relationship.

State Boards of Nursing will be weakened

In addition to the issues already described, the economic effect of the mutual recognition model may be enormous. In Washington, DC, for example, many nurses live in states surrounding the district. The implementation of mutual recognition would withdraw their license fees from the district and decrease the ability of that board to do its work. New York estimates the negative effect of this model to be over $1 million. Other states, particularly those with a large geographic areas but without highly populated borders, may feel less of an effect; but, at this time, no clear formula has been determined to assess how big a financial impact this model would have. If a board is weakened in its ability to protect the public, how can a model be judged to improve consumer protection? For example, boards hire investigative staff from the funds provided by nurse licensing fees. If the compact resulted in a significant reduction in revenue for a board of nursing, the board's ability to investigate complaints in a timely fashion and pursue action against a nurse whose practice places patients at risk would be weakened. This could result in a failure to protect adequately the public's interest.

Lack of detail about the centralized data base (NURSYS)

Throughout the discussions between individual nurses, professional nursing associations and the NCSBN, questions have repeatedly been asked about the centralized data base. At the outset of the NCSBN’s introduction of this model, there was virtually no detail about how this database would be implemented and operated. There is only limited information available almost two years later. Concerns which nurses have about this data base reflect concerns that the general public has about any database containing personal information.

The database will contain both licensure and disciplinary information. With respect to licensure information, nurses can readily understand how valuable it will be to have boards of nursing able to quickly verify the licensure status of any given nurse. That rapid verification has long been a goal of boards of nursing and nurses themselves. Endorsement into a new state can be much more efficient and can occur more quickly through the use of a centralized data base. However, nurses are uncomfortable with the lack of detail about what information will be included in the database, who will have access to it and how security will be maintained. In particular, nurses are concerned about public access to information, such as home addresses. In recent months, the NCSBN has begun to detail the information that will be contained in the data base and specifics about access, but has not yet been able to answer questions about security.

The first versions of the interstate compact, which is the implementing document for this model, contained broad and vague language about the disciplinary information that will be contained in the database. In this version, not only would states participating in the compact have been required to report final orders or disciplinary decisions such as suspensions and revocations but also "significant investigatory information." This would have allowed boards of nursing to circumvent very critical decisions which have been made during extensive professional and public debate. In Oregon, for example, complaint and investigation files are not made public. Only the final decision of the board, which is made after a full and complete investigation is completed, and to which the nurse had the opportunity to respond and object, is available to the public. Although there have been aggressive attempts made to open all files, the public interest in needing information before final determinations have been made has not balanced favorably against the potential harm to both complainant and nurse. Since nurses deal with personal and confidential information which may be a part of a complaint, exposing that information to the public is not in the consumers' best interest. Also, since there are a significant number of unfounded or even frivolous complaints made against nurses, that exposure would be potentially detrimental to a professional who has committed no violation of the practice act.

This initial lack of clarity by the NCSBN about what the definition of "significant investigatory information" means produced strong objections by nurses and nursing organizations. During the summer and early fall of 1998, this phrase was finally clarified due to the pressure of the American Nurses Association and the action of its House of Delegates (House of Delegates, 1998). The resulting clarification currently in the model compact reads "Current significant investigative information means: 1) investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the nurse to respond if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or 2) investigative information that indicates that the nurse represents an immediate threat to public health and safety regardless of whether the nurse has been notified and had an opportunity to respond" (National Council of State Boards of Nursing, November, 1998, Article II, (d)(1)&(d)(2)).

This new clarification represents a vast improvement over the initial language and should, in part, answer the concerns of consumers and nurses. However, how security of this data base will be implemented and assured remains unclear.

The ability of state nurses associations (SNAs) to achieve optimal standards, working conditions and compensation for nurses may be compromised

Initially, this concern may seem to represent only the interest of the profession. It is, however, also a matter which should be of concern to consumers. As has been stated previously, any compact state would be required to honor the license of a nurse from another compact state. In the event a compact state reduces its standards, such as those governing foreign educated nurses, every other compact state would see its standards reduced as well. An employer, having an interest in finding nurses willing to work for substandard wages and under less than optimal practice conditions, would find it easier to move those nurses into a compact state since state licensure would no longer be necessary.

Some states have statutes which preclude licensure in a new state solely for the purpose of participating in a labor dispute or acting as a "strikebreaker." If nurses can practice in a state without being licensed, the effect and enforcement of these statutory provisions would be nullified. Although strikes by nurses are rare, they are most often related to quality and professional practice issues rather than economic. It would be ironic if those nurses coming in to provide care during a strike offered lower quality than those they replace. And that is a real possibility. Those nurses able to move to a new state at a moments notice for an undetermined assignment, may not be qualified to perform the specialties needed by a given institution. For example, if the hospital which is the subject of the labor action is a Level I trauma unit, will the nurses coming from another state have the necessary qualifications? Might an institution with a strong desire to survive a strike by nurses lower its requirements for those nurses willing to fill in on a temporary basis?

Lack of clarity about dual disciplinary actions

Under the mutual recognition model, a nurse can be "disciplined" for actions both in her/his home state and in a remote state where care was delivered. Nurses are expected to know the standards of each state in which practice occurs and apply them to each patient interaction. When an incident occurs in which action by a board of nursing is necessary, the standards of two states may apply. A descriptive example is helpful in understanding how this may work. You are a nurse licensed in a state which allows you to delegate professional nursing actions to unlicensed persons in certain circumstances. You provide care to a home bound patient in another state and delegate to an unlicensed caregiver with some negative outcome to the patient. The state in which the patient is located does not allow delegation of professional nursing actions. In the event the remote state board of nursing decides to take action against your multistate privilege, that action is based on standards different from those of the state in which you are licensed. Thus, you may receive a sanction in one state for acting in a way that is entirely consistent with your own state’s laws and rules.

The compact, as currently written, requires each nurse to practice consistent with the laws and rules of the state in which the patient is located. While this expectation is easily understood and reasonable, the lack of clarity about how all party states (those which have signed on to the compact) will handle the same incident makes the feasibility of this model difficult to understand. Under our current licensure system, each state is allowed to judge the individual nurse against its own standards. When a nurse, who has a discipline in another state, endorses into a new state, she/he is not automatically barred from receiving a license. An evaluation is done on the disciplinary action.

Under the multistate licensure proposal, it is unclear what role all of the compact party states would play. If a multistate licensure privilege is withdrawn by New Jersey, will all party states withdraw that privilege as well. How is due process afforded a nurse, then who must defend herself and interact with several licensing boards. If attorneys are required, they must be hired in each state which chooses to take action since law has not adopted a national license or multistate privilege. Additionally, if a patient is involved in the board action and the nurse chooses to contest that action by all party states, how does that patient interact with several boards?

The cost of mutual recognition is unknown

In previous sections of this discussion, there have been references to costs inherent in this model. In truth, the cost to implement it is unknown. Many costs need to be assessed and, to date, have not been assessed by either individual state boards of nursing or the National Council. One must ask why a model is being advocated so aggressively when its financial implications are not known.

Among the costs which require more consideration are those to the individual nurse, to the board, those associated with the development and implementation of the NURSYS, those the individual consumer will bear and those which a state government may pay. Some states have indicated that they expect a relatively modest increase in licensure fees upon entry into the compact. Unfortunately, this estimate is based on rather crude guesswork based on the number of nurses licensed in a given state but with a home address in another state. Costs for the compact administrator's work, dual disciplines, and use of NURSYS are not included in this estimate. Other states have determined that a substantial increase in fees will be necessary to offset the licensing fees paid by nurses not residing in the state.

In its first documents describing this model, the costs of holding more than one license were asserted to be part of the reason for adoption of the mutual recognition model. The NCSBN argued that there is no justification for a redundant licensure system when one license could be used in multiple jurisdictions. Before that time, the cost of state licensure received little attention by the profession. With modest license fees, holding two or three licenses seems to pose an acceptable financial investment. It is interesting that the NCSBN cites cost for licenses as a reason to support its new proposal when it cannot predict what the financial impact on the individual nurse will be.

As with those affecting the individual nurse’s license fee, cost to the board in any party state also cannot be predicted at this time. What will the workload of the compact administrators group be? How much of the board’s resources will need to pay for travel expenses to be a part of this group? What staff resources will need to be devoted to dealing with multistate privilege issues versus those affecting nurses licensed and practicing in the state. Will fees paid to adjunct staff, such as attorneys' fees, increase substantially?

NURSYS, the computerized data base which supports this proposal, also has an unknown price tag. While this data base is desirable, and needed, most individuals who have had experience with the development and implementation of such systems, expect that it will take more time and more money than predicted to achieve. Given that the NCSBN has not shared what the estimated costs are now, serious concern have arisen about what they may turn out to be in reality. Since, individual nurses pay for their board of nursing through license fees and since the individual state boards support the NCSBN through membership fees, this cost issue will affect every nurse.

One of the purposes of the compact is to "promote compliance with the laws governing the practice of nursing in each jurisdiction" (National Council of State Boards of Nursing, November, 1998, Article I (b)(4)). In carrying out that purpose, other state laws will be affected. For example, a state may require that any person holding a license to practice nursing report suspected child abuse. Thus, the reporting statute becomes a law which governs the practice of nursing but may not be found within the language of the "practice act" per se. The interaction between the compact, the nurse practice act and other laws attached to the nursing license may well involve other state agencies beyond the board of nursing. This means that resources to support this interaction will need to be allocated from the budget.

Another cost is that of implementing the same language in multiple state legislatures. It is difficult for the author to imagine several states being willing to sign onto the same language putting experience aside, when problems are found with the current language, as they inevitably will be if it is enacted in multiple states. Remedies will need to be enacted in all jurisdictions. This means legislative procedures, administrative rule procedures and increased work for the compact administrators. Those costs have not been a part of the discussion during debates on the merits of this model.

Any major change in nursing licensure should be made by the profession and the consumers it serves

Aside from the specific concerns related to the mutual recognition model, the overall question which many nurses express is why a single purpose organization, composed solely of regulators, is unilaterally attempting to make such a significant decision affecting the profession and the consumers it serves. Since the NCSBN delegate assembly voted to support this model in concept, the elected leaders and staff of the organization have waged an aggressive campaign to defend it and lobby for its passage in as many states as possible as quickly as possible. Questions which were posed in 1997 are largely unanswered, yet the NCSBN is hoping for 1999 to bring approval of the compact in several states across the country. What is the reason for the unwillingness of the NCSBN to debate and fully discuss the issue of interstate practice?

In many states, there is a successful partnership between the board of nursing and professional nursing organizations. This partnership relies on each organization to act in concert with its mission whether it is public protection or professional promotion, and to work collaboratively towards sound policy. In the case of the mutual recognition, this partnership has been sadly lacking. In fact, many boards of nursing have questioned this model within their own organization and have been met with the same lack of answers and willingness to discuss the issue as have professional organizations. This behavior leads many to question the agenda behind the rapid movement to adopt a model for regulating interstate practice before other models are fully evaluated. Regardless of the motivation of the NCSBN, it is clear that divisiveness is not in the best interest of the nursing profession.

What is needed now is for the profession to take a step back and engage in thoughtful consideration of the conditions that face us, what we can expect in the future and the best way to position our regulatory system to manage what we expect to happen.

There are other models for licensure which address concerns related to interstate practice which do not involve such a drastic change from our state based system. Before we make a decision about regulating cross border practice, however, some basic policy decisions must be made not only by the nursing profession but by all health professions. Policy questions must be discussed and collaborative decisions made. Where is licensure tied — to the location of the provider or that of the patient? Are states willing to give up enforcement of standards to facilitate interstate practice? Are there procedures that can make our current system of licensure more efficient and that will facilitate mobility of professionals in the interest of access?

The American Nurses Association House of Delegates (House of Delegates, 1998) extensively discussed interstate practice and enacted a set of policy criteria that it believes should guide the development of any new licensure model. Those policies are guiding the current work to develop an approach to interstate practice which can be debated by the profession before legislative action is considered. In the meantime, other related issues such as the provision of anonymous telehealth care must receive attention so that any regulatory system, whether our current arrangement or some modification of the future, is usable by the consumers to whom we commit our care.

Author

Susan King, MS, RN
E-mail: king@oregonrn.org

Susan King is responsible for the nursing practice and government relations programs of the Oregon Nurses Association. She has experience in lobbying for nursing and other health-related legislation and in working closely with the Oregon State Board of Nursing on nursing standards. She also practices as a staff nurse in a large Portland emergency department. These experiences have given her a unique and reality-based perspective on the current issue of multistate licensure. Ms. King holds a BS degree from the University of Oregon and an MS from the Oregon Health Sciences University School of Nursing.

References

House of Delegates Summary of Proceedings. (June, 1998). Action Report on Interstate Practice (pp. 59-64). Washington, DC: American Nurses Association

National Council of State Boards of Nursing. (April, 1998). Boards of nursing approve proposed language for an interstate compact for a mutual recognition model for nursing regulation. Multistate Regulation Task Force: Communique 9(1), 256.

National Council of State Boards of Nursing (1998, November). Nurse Licensure Compact. Available: www.ncsbn.org/files/mutual/compact9811.pdf.


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


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