NURSE LICENSURE COMPACT ADMINISTRATORS (NLCA) RESPONSE TO ANA UPDATED NLC TALKING POINTS (DEC 2011) 4 TALKING POINTS SUMMARIZED ANA TALKING POINT 1 The state of practice rather than the state of residence holds greater logic for licensure, since licensure is intended to protect the health and safety of the citizens of the state in which the license is held. NLCA Response: The state of residence holds the greatest logic for the Nurse Licensure Compact (NLC). The NLC has been in existence since 2000. The state of residence is the basis for licensure. An eleven year history with 24 states participating in the NLC has demonstrated that this is a safe and effective regulatory model for licensure. Nurses licensed in this model live in one state (home state) but practice is based in one or more other states (remote state/s). The home state license grants a multi-state privilege to practice in remote states. Nurses must abide by all the laws and rules of the state/s where practice occurs. If a person moves to a new state and declares a new primary state of residence, a new license must be obtained and the previous state license is relinquished. Many nurses are working in positions that require them to practice in multiple states. This is especially true for nurse case managers, many of whom are holding licenses and practicing in all 50 states. NLC allows the nurse to skirt the authority of the state of practice to regulate criminal behavior in licensees. NLCA Response: There is no evidence that the compact facilitates the ability of a nurse to skirt the authority of the state of practice to regulate criminal behavior in licensees. In fact the compact provides specific and uniform authority to member states to take any action on the privilege to practice (PTP) that is allowed under the laws of the home state. This allows a remote state to respond rapidly and efficiently to any reported practice violation. Final actions on a PTP are reported in the coordinated licensure information system (Nursys ) and to the Federal Data Banks. States that take action on a PTP share the investigative findings with the home state. The NLC also requires states to report any significant investigation that has been initiated to alert other states and requires that an application for license in a new state be held in abeyance until the action is finalized in the investigating state. Additionally, the ANA fails to acknowledge that the provisions of an interstate compact supersede conflicting state law because of the contractual nature of the compact. 1 This includes conflicting statutes, rules and regulations which inhibit the timely exchange of information for both the licensee as well as the complainant. Thus, rather than inhibit timely exchange of data, information sharing is actually enhanced by the compact model of licensure. NLC can inhibit the timely exchange of information for both the licensee as well as the complainant, and may even stop the sharing of information altogether. 1 See West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951) 1
NLCA Response: The NLC actually enhances the ability of states to share information. It not only allows for the sharing of information but requires it as a condition of participation in the NLC. The NLC ensures the timely exchange of information through enacted requirements for reporting current significant investigative information and final adverse actions within 10 business days to Nursys, (the coordinated licensure information system). This includes action on a home state license and action on a privilege to practice. Additionally, NLC states provide daily updates of licensure information to Nursys. Some employers, private and governmental have policies requiring licensure / current registration in the state of practice. NLCA Response: The policies of employers do not supersede the statutes implemented by the state boards of nursing. Many of the policies that required licensure in the state of practice are outdated and were in place prior to the start of the NLC. Numerous educational tools have been developed by the NLCA to guide employers with licensure procedures. (Ref: Fact Sheet for Employers) Additionally, there have been few reports of employers (governmental or private) not accepting a multistate license as valid authority to practice. Compact Administrators will work with employers to assist them with comprehension of the NLC and resolution of any issues. ANA TALKING POINT 2 Interstate practice must not be implemented in a way that allows persons to circumvent or contravene existing public policy as expressed by a state s laws or policies, including laws on the use of strikebreakers and striker replacement or initial and continuing licensure requirements. NLCA Response: The NLC does not facilitate strikebreaking. However, to the extent an individual state has such concerns; a compact provision may be included explicitly stating that the NLC does not supersede any existing labor law. As a matter of public policy, BONs do not consider where or in what circumstances a qualified nurse plans to practice. The turnaround time to grant a temporary permit or temporary license is a matter of days in most states. There are many variations between states in relation to licensure / re-registration requirements, such as: o mandatory continuing education, NLCA Response: The variations in the laws that are listed above and the resulting discussion issues are not unique to the NLC. The NLC is a state-based system that is recognized nationally but enforced locally. The NLC does not require all states to function identically. In fact, that would defeat the concept of a state-based system. It does require that the party state recognize the licensure decisions of other party states. The statutes and rules that govern the NLC define which licensure requirements must be uniform. Mandatory continuing education is a continued competence methodology. Continued competence is also demonstrated by other methods such as employment in nursing for a specified number of hours or a portfolio process. There is no consensus on which method is the most effective measure. The nurse is required to meet the continued competence requirements in the home state. Nurses working side by side will have met core licensure requirements of graduation from an approved education program, successful completion of the NCLEX and licensure by a state board of nursing. The only variation will be the method in which they demonstrate continued competence for licensure renewal. 2
o criminal background checks, NLCA Response: Criminal background checks are a Uniform Licensure Requirement that all state boards of nursing are striving to implement. In order to conduct fingerprint based criminal background checks statutory authority is required by each state legislature. Criminal background checks are not used to deny licensure in a state. They are used as a tool for conducting investigations in the process of vetting nurses for licensure. Additionally, the National Crime Prevention and Privacy Compact which provides a uniform means of conducting criminal background checks has been ratified by a majority of the states and will continue to enable states to achieve greater consistency in relation to nurse licensure and re-registration. o disciplinary causes of action and evidentiary standards. NLCA Response: Nurses are granted due process in any disciplinary proceedings regardless if the action is against a license or a PTP. This is a requirement of the US Constitution, Amendment 14. No nurse can be deprived of a license (property right) without due process which includes the right to a fair hearing. NLC states follow all of the due process laws that are unique to their state. Licensees have the right to appeal decisions made by a regulatory board to a court of law. The NLC requires states to give the same priority and effect to reported conduct received from a remote state as it would if such conduct occurred within the home state. NLC states have the authority to take any action on the privilege to practice (PTP) that is allowed for action on a home state license. This ensures that licensees cannot circumvent the laws in the state of practice. The assertion of the ANA that the compact will allow nurses who may show indications of aberrant or criminal behaviors or who could not get licensed in the state of practice to practice under the compact privilege assumes that there is a large disparity in the types of aberrant and criminal behaviors that states will tolerate for the purpose of licensure. While it is true that some states have permanent bars to licensure and others do not, every board of nursing makes a determination that an individual is eligible/safe to be licensed. A state has the authority to take any action on a PTP that can be taken on a license. NLC member states are obligated to follow the laws and rules of the NLC. The NLC specifically addresses participation in alternative programs defined as a voluntary, non-disciplinary monitoring program approved by a nurse licensing board. Article VI of the NLC states: Nothing in this compact shall override a party state s decision that participation in an alternative program may be used in lieu of licensure action and that such participation shall remain nonpublic if required by the party state s laws. Party states must require nurses who enter any alternative programs to agree not to practice in any other party state during the term of the alternative program without prior authorization from such other party state. The NLCA has reviewed all party states alternative program contract requirements to ensure that all contracts contain this language. 3
ANA TALKING POINT 3 The Nurse Licensure Compact does not allow state regulators to identify everyone practicing in the state, not only limiting the states ability to protect its citizens from potential harm, but also making it impossible to collect workforce data to guide future projections and determine needed strategies to ensure an adequate number of nurses. Mechanisms should be in place to ensure that a board of nursing knows who is practicing in its state. NLCA Response: Identification of everyone practicing in a state is not an issue that was either created by or can be solved by the NLC. States do not issue licenses based on place of employment; both models of licensure require that a nurse holds a valid license. Having a license in a state may or may not mean that the licensee is practicing in that state under either model of licensure. It means that the nurse has met the standards to be licensed and practice in the state of issuance. NCSBN is collaborating with the Nursing Workforce Forum and all Member Boards to collect nursing workforce data. Workforce data collection is important and helpful to guide future projections and strategies to ensure an adequate supply of nurses. Efforts are underway within NCSBN to achieve an unduplicated count of active nurse licenses in each state and the nation. Data collection for tracking state of practice is in process as well. ANA TALKING POINT 4 The Compact model raises significant questions related to liability. Boards of nursing protect the public not only through licensing and disciplinary functions, but also through interpreting and enforcing the state nurse practice acts. The Compact model impedes the boards ability to perform these vital functions. This raises questions such as, Who, then is liable for failure to practice within state standards or within recognized state scope: the nurse, employer, the state in which the nurse is licensed or the state board of nursing in which the nurse is practicing? NLCA Response: The 24 states which are parties to the NLC have not had issues with interpreting and enforcing the state nurse practice acts. After an eleven year history of implementation, there is no evidence to suggest that the NLC impedes the functions of the boards of nursing (participating or otherwise). The nurse is responsible to be licensed in the primary state of residence and to practice within the laws and rules of the state where practice occurs. Employers are responsible for verification that employed nurses hold a valid license in the state of residence. Insurance is a state-based function. The underwriting of insurance is based on an actuarial assessment of risk for practice within the state of practice, with the assumption that the state of licensure is the state of practice. This assumption allows the insurer to develop certain factors for evaluating and assessing risk. NLCA Response: While insurance underwriting, in the context of professional responsibility and corresponding actuarial assumptions, is frequently a function of claims experience within a state, there are other examples of "interstate" risks for which insurance underwriting is commonplace. In fact there is an entire segment of the insurance market devoted to transactions which fall into the category of 'surplus' or 'excess' lines insurance coverage in which virtually every transaction involves interstate issues. Moreover, the increasing number of hospital corporations, health insurance providers and other health care entities which operate across state lines have necessitated that insurers must 'reckon' with the realities of the market place, including the requirements of professional liability insurance and professional liability carriers who are already underwriting such 4
multi-state risks. The following NSO Responses were provided by and are printed with the permission of Nurses Service Organization. (NSO, http://www.nso.com/, is a national carrier of professional liability insurance for nurses.) The NSO program s underwriting (eligibility for acceptance into the insurance program) assesses the historical risk the nurse represents; have they ever been denied coverage, have they ever had an action taken against their license and have they ever been involved in a lawsuit. These questions are not limited by a timeframe nor are they limited by state we endeavor to understand any action that may have been taken against the nurse and / or their license. From a rating perspective, the NSO program endeavors to have a national program where rates / coverage are consistent from state to state. The actuaries assess the overall performance of the program and its profitability. If / when rate action is deemed necessary (based on the claim activity for the program overall), the rate action is typically based on the program s overall performance and is instituted (filed) consistently across the country. There are rare instances where we ve deviated from our national program rates in a specific state. This is typically due to a unique circumstance in a given state as approved by the State Insurance Department. When there is a difference, NSO program rates are based upon the insured nurses State of residence. We do not make an assumption that the state of practice is the state of licensure. However, we expect our insured nurses to be licensed, or endorsed where reciprocity exists, wherever they provide nursing services. How does a state-based insurance underwrite the practice of nursing by out-of-state licensees? Again, our approach to pricing is a national program where the profession (nursing) is evaluated from a profitability perspective and rates are adjusted on a national basis. As such, our underwriting (eligibility) is consistent from state to state and our pricing is consistent from state to state (with some modest deviations based on state regulatory issues). From an underwriting perspective, we do not differentiate between insured s with home state vs. out of state licenses. What benchmarks should be utilized to determine competence to practice in another compact state and the type of risk of suit the insured is incurring by practicing outside of the state of licensure without direct regulation? Competency to practice is a broad question. We have a baseline expectation that each insured nurse only practice where their license allows and that such practice is within the scope recognized by that state s board of nursing. From an insurance program eligibility perspective we look to ensure (1) that the nurse has not been denied coverage in the past (2) that they ve never been subject to a disciplinary action (in any state) and (3) that they ve had acceptable loss history (regardless of state). If the state of practice has a continuing education requirement or additional training/education requirements for certain practices and the state of licensure does not, how is the insurer to factor in the differences in failure to comply with state of practice licensing requirement? 5
We trust that our insured s comply with the licensing requirements in the state(s) where they are licensed to practice. If there s a claim and it s determined that the nurse was not licensed to practice in a given state - then their coverage / claim may be denied as they are practicing without a license. We do not require our insured s to provide us evidence of licensure rather our policy form defines Professional Services as follows: means those services for which you are licensed, certified, accredited, trained or qualified to perform within the scope of practice recognized by the regulatory agency responsible for maintaining the standards of the profession(s) shown on the Certificate of Insurance and which you perform as, or on behalf of, the named insured. By definition, our policy requires that insured nurses are appropriately licensed to perform the services of an RN within the scope of practice (defined by the state in which they are performing these services). (Acknowledgement: NSO Responses made possible with the assistance of Case Management Society of America.) Inquiries can be directed to nursecompact@ncsbn.org. 6