LICENSURE

Licensure is an exercise of the state’s police power that the state legislature uses to protect the health, safety, and welfare of its citizens. Through state licensure statutes, the state controls entry into the profession, the discipline of licensees who fail to comply with minimal standards, and the nursing activities of unlicensed practitioners (“nurse imposters”). Boards are composed largely of the professionals that they regulate. Nurses themselves, typically with some consumer representation and input, implement the standards because their specialized knowledge best qualifies them to evaluate and oversee nursing practice.

All the states, the District of Columbia, and the U.S. territories have laws and regulations controlling nursing licensure and practice. National guidelines serve as useful references for nurses in proposing and implementing state laws. The American Nurses Association, the American Association of Colleges of Nursing, the National Organization of Nurse Practitioner Faculties, and other professional groups develop definitions and standards of nursing education, practice, and ethics that are often incorporated into state NPAs. These NPAs are implemented through a state agency called the health professions board, nursing board, or a similar title. Rules and regulations promulgated by the board give meaning to the NPA.

The most visible function of NPAs is the control over entry of new members into the nursing profession. Nursing and other professions have been scrutinized for entry requirements that may contain bias, discriminate against minorities, or discourage diversity. Entry requirements typically include completion of an approved nursing education program, satisfactory performance on a standardized licensure examination, competency in spoken English, and strong moral character. Laws regulating nursing practice vary from state to state, with each state placing its individual requirements on the profession. All state NPAs, however, intend to ensure the health and safety of the patients receiving care by nurses. Licensing is supposed to protect the public from incompetence and abuse. Does a blanket license, covering practice over a broad range of specialties, accomplish that purpose? Do recredentialing tests scrutinize actual competence? Other licensure questions facing the nursing profession include the following: Is licensure too restrictive in its limits on entry into the profession? Do the tests and criteria used actually identify the individuals who are safe and competent nurses, or do they shut out good nurses who are different from a homogenized stereotype? Do licensure requirements protect the public, or do they protect nursing professionals by eliminating competition? Should a national licensure for nurses be established so that nurses could easily practice across state boundaries?

Although a national nursing license is not currently available, an interstate mutual recognition model of nurse licensure, also known as the Nurse Multi-State Licensure Compact (or “the Compact”), was approved by the National Council of State Boards of Nursing (NCSBN) in 1998. To participate in the Compact, each state legislature must enact the model Compact. The first state to pass the Compact into law was Maryland in 1999. As of 2009, 23 states had passed the nurse licensure Compact (NCSBN, 2009). The Compact allows a nurse who holds a license in the state of legal residency (the state used as residence on the federal tax return) to practice in other states that have enacted the Compact. The Compact for nursing works like the compact law of a century earlier, which enabled states to recognize automobile licenses so that drivers could cross state lines (Philipsen & Haynes, 2007). The nursing licensure compact is the result of technological advances, including the Internet and the increasing ease of transportation and communication in health care. The goal of the Compact is to ensure public protection and enhance access to safe and competent nursing care for patients who are across state lines from their nurse. These patients may be receiving services through telenursing, by a traveling nurse, or by a nurse who regularly drives across a state line to get to work. Nurses must have licenses in all of the non-Compact states where they practice. Because the nurse who is practicing on a Compact license is subject to each state’s laws, the Compact nurse must be familiar with and comply with the NPA for each state in which he or she works.

Because state laws governing advanced practice registered nurses (APRNs) vary more significantly than those governing entry into nursing, a model setting standards for multistate certification took longer to develop. In September 2008 the NCSBN endorsed a new Consensus Model for APRN Regulation: Licensure, Accreditation, Certification, and Education. However, until states pass model legislation agreeing to recognize one another’s advanced practice regulations, APRNs must continue to obtain APRN certification (a procedure that is in addition to, and separate from, RN licensure) in each state where they are practicing.

CONTROL OVER PRACTICE

The power to control entry into the profession and the power to take disciplinary action on the license of practitioners were developed to assure the public of safe, qualified practitioners. An indirect result of those powers is that the boards have some ability to exert control on the nursing market. Licensure grants a privileged place in the occupational hierarchy, but it is a position challenged both by the public and by other professionals who fear the surrender of power. Nurses also control the quality and standards of nursing care in the state through the disciplinary process of nurses in the NPAs. Thus, as in many other professions, NPAs leave public consumers of nursing care dependent to a large degree on members of the profession to control access to nursing services and to maintain the quality of nursing care. The result is that nurses have the duty to advocate for patients, at the bedside and before the licensing board, for high-quality care from competent licensed practitioners. The ability of nurses to meet this great responsibility is sometimes challenged by members of the public who fear competing professional incentives. Some have also argued that this is too much power to give any profession because professionals may be reluctant to discipline their own colleagues.

This power is also challenged by other professionals, from physicians to wound care specialists and lay midwives, who are afraid that nursing’s scope of practice will compete with their own professional and financial incentives. NPAs permit nurses to function under a broad definition of nursing while restricting the practice of nonnursing personnel who might otherwise deliver many services provided by nurses.

Enforcement of the prohibition against the unauthorized practice of nursing is exemplified by the practice of lay midwifery. Some states define midwifery as an advanced practice area within nursing and prohibit the practice of midwifery by nonnurses. Practicing lay midwives are not registered by the board of nursing and may be served with cease-and-desist orders. Boards may also request criminal charges for misrepresentation against lay midwives with the local office of the state’s attorney (People of the State of Illinois v. Jihan, 1989). Some boards have administrative fining powers for unlicensed practitioners, which they can impose on lay midwives. These powers are invoked regardless of client satisfaction and often in spite of public protest. Boards argue that a threat to the public safety and welfare is inherent whenever unlicensed practice occurs, regardless of the specific situation. Similar policies and procedures have prevented nursing from taking over functions that have been absorbed into medical specialties. The jurisdiction of the nursing board may overlap with other professions that perform some of the same functions as nursing. For example, the expanded role of the nurse has resulted in clashes with physicians at the regulatory level (Sermchief v. Gonzalez, 1983). While nursing boards have moved to limit the practice of unlicensed lay midwives, medical boards and organizations have moved to limit the practice of several types of advanced practice nurses.

The above arguments illustrate the restrictive nature of licensing by limiting entry and practice. Is licensing too restrictive, or is licensing too permissive by granting “blanket” licenses? Does licensure today permit nurses to practice beyond their actual competence? No individual nurse can competently perform all the services that nurses are licensed to deliver. Although most nurses practice only in a limited field (e.g., surgery, obstetrics, oncology), a nursing license permits a nurse to practice in all areas of nursing. In addition, after initial licensure, many states require little or no demonstration of continuing competency to practice. However, initial credentials do not guarantee competency in the indefinite future. For this reason, some states and health care agencies are requiring mandatory continuing education or advanced certification as an indicator of ongoing competency (Philipsen, Lamm, & Reier, 2007).

DELEGATION IN NURSING PRACTICE

Most state NPAs authorize registered nurses to delegate, or assign, certain nursing care tasks to a nonnurse, although the nursing process itself cannot be delegated. Some nurses, knowing that they are accountable for the care that they delegate to their nursing assistants and other nursing extenders, are fearful of delegation. However, nurses who delegate reasonably and responsibly do not need to fear the task of delegating. Safe delegation requires that the nurse understand the requirements for delegation, such as assessing the task, selecting a nursing assistant/delegatee who is both competent and allowed by law to perform the task, explaining the importance of the task, and evaluating and giving feedback after the delegated task is complete. The 2006 Joint Statement on Delegation by the NCSBN and the ANA is (NCSBN and ANA, 2006) available online (www.ncsbn.org/Joint_statement.pdf).

DISCIPLINARY AND ADMINISTRATIVE PROCEDURES

A board of nursing usually has both regulatory and adjudicatory power. The regulatory power authorizes the board to develop rules and regulations for nursing licensure, nursing education, and nursing practice. The adjudicatory power authorizes the board to investigate, hear, and decide the outcomes of complaints that involve violations of the act and of the rules and regulations promulgated by the board. As mandated by the NPA, the board must ensure that a licensed nurse continues to practice within the standard of care, behaves professionally and ethically, and obeys all relevant state laws. The NPA contains or incorporates a number of grounds to achieve this. The disciplinary action is on the license of the nurse, and that license may be suspended or revoked by the board.

It is important to understand that the responsibility of state boards is to protect the current and future safety of the public. Their delegated powers are to protect the public from unfit nurses, not to punish bad nurses. Boards can only limit or deny a nursing license. They cannot incarcerate a nurse, and they cannot require a nurse to compensate a patient for damages, financial or otherwise. Most board actions cannot be used in a lawsuit against a nurse. If an injured patient does seek monetary damages, he or she must file a civil lawsuit against the nurse. If an individual thinks a nurse has acted criminally, that person must contact the office of the state attorney.

A professional license is property protected by the U.S. Constitution. This means that it cannot be limited or taken away without due process. Each state has an Administrative Procedure Act that guides the procedures within state agencies to guarantee this due process right. Each state agency has its own regulations that describe how the agency implements the law. These regulations can vary greatly from state to state and even among professional boards within a state. A board of nursing in one state may hear all arguments concerning nursing issues. The board in a neighboring state may delegate this action to an administrative law judge or a hearing officer. Within a state, a board of nursing may hear its own cases, whereas another professional board in the same state may have its cases heard by an outside hearing officer.

Due process requires the right to be heard, and it requires notice. A licensed nurse has a duty to be aware of the state’s NPA. The NPA is considered notice to nurses in that state about the grounds for which they may lose their license to practice. Further notice comes when a nurse receives a charging document. This paper advises the nurse that the board has probable cause to believe that the nurse is violating the NPA. It has to be specific enough to give the nurse notice about what any defense could be and about the time and place of the hearing.

Due process further requires that a nurse be afforded the right to appeal any decision made by the board that seems improper. This appeal is usually to the state civil courts. Appeal is typically limited to procedural issues, such as whether the board had a right to hear the case or whether the board gave the nurse proper due process rights.

Although all NPAs have commonalities, each state has its own unique legislation. The nurse who moves from one state to another or practices in multiple states through the Compact should obtain a copy of each state’s NPA. The differences in state NPAs can be significant. For example, one state may impose no legal duty on a nurse to report the incompetence of a physician. In the next state, the nurse may find that failure to report such a physician can result in the loss of the nurse’s license. The nurse needs to be familiar with the requirements of the local NPA for licensure, the boundaries and definitions of practice, the areas for discipline on practice, and the procedures in place to protect the nurse in case the board challenges the license.

THE AMERICANS WITH DISABILITIES ACT

In 1990, the federal government enacted the Americans with Disabilities Act (ADA). The ADA (U.S. Department of Justice, 1990) prohibits discrimination based on disability in employment. It also prohibits disability-related discrimination by state and local governments, by private companies, and by commercial facilities. This is a federal law and, like the constitutional right to due process, it applies to all state boards. Updated information about ADA requirements can be found online (www.ada.gov). The entire text of the ADA is also available online (www.ada.gov/pubs/ada.htm).

Formerly, the boards could interact with disabled nurses without regard or accommodation for their disability. Now disabled nurses, such as those with a drug dependence who are compliant with treatment, those with a physical impairment, and those with a mental illness, are granted special confidentiality, as long as it is consistent with patient safety. This is intended to encourage nurses to seek treatment and self-report, to report other nurses who need treatment, and to ensure that the disabled are not the object of discrimination. Some boards have responded to this mandate by creating their own internal resources to comply with the ADA, such as a rehabilitation committee. Others have made arrangements with external groups, such as rehabilitation services that are provided privately or by a professional organization. A nurse in treatment for a protected disability does not have a public record connected with that disability.

The ADA also requires the professional boards to make any special arrangements to facilitate access to practice by nurses. Examples are special communication services for the sensory impaired and reasonable accommodations at the entrance to the site for licensure examinations or disciplinary hearings.

CONTRACT LAW

Nurses who are employed work under some form of contract. A contract is a promissory agreement between two or more parties that creates (or modifies or destroys) a legal relationship (Schwartz, Kelly, & Partlett, 2005). A contract can be in writing, or it can be in spoken language with specific terms, in which case it is called an express contract. A contract can also be based solely on the conduct of the parties. These contracts are referred to as implied contracts.

An enforceable contract must first be for the performance of legal goods or services. A nurse cannot contract to practice medicine. Second, the parties must have legal capability to make the contract. For example, they must all have the mental ability to understand their actions and must be old enough to make a legal agreement. Third, all parties at the time of the contract must agree to do something, and they must agree on what that something is. Finally, there must be “consideration” (i.e., some kind of trade in which each party gets something from the contract). In a typical nurse employment situation, the employer receives nursing services, and the employee receives financial reimbursement.

All states have a “statute of frauds” that limits the enforcement of some contracts that are not written. These vary and are usually not significant to a nurse employee situation. However, a nurse who wants to prove the specific terms of a contract will obviously have difficulty with an oral contract.

Of more significance is the state “parole evidence rule.” This rule provides that if oral agreements are made that differ from the written contract, the courts will not allow them to add to or change the written contract. Overcoming a written contract can be difficult for nurses, although it can be done—for example, by showing fraud or duress by the employer. When a nurse agrees to an employment position, he or she should be familiar with the employment contract, should obtain it in writing, and should not rely on oral agreements that are not part of that written contract. What about the role of the contract when the nurse is being terminated from employment or wants to leave that employment? A contract can be legally terminated when it has been completely performed, its terms have been met, both parties agree to a change, it becomes impossible (e.g., through the death of a party or the destruction of the subject matter), or both parties agree to annul the contract. A contract can also be terminated by a breach, which means that one of the parties fails to meet the terms of the agreement. When that happens, the other party can sue in civil court for any damages. For instance, an employee could sue for lost wages, and an employer could sue for lost profits. The Fair Labor Standards Act (FLSA) sets standards for overtime pay, minimum wage, family and medical leave, child labor, and workers’ compensation. The U.S. Department of Labor provides a detailed description of the provisions of the FLSA online (www.dol.gov/compliance/laws/comp-flsa.htm). A nurse employee in a private setting could also file a grievance with the National Labor Relations Board (NLRB). Of utmost importance for nurses to understand is that most employment contracts are not individual contracts but are “at will.” The following section clarifies this concept.

EMPLOYMENT AT WILL

Employment at will means that the employee has the right to quit employment at any time for any reason, or “at will.” The employer has the parallel right to terminate the employee at any time for any reason, also at will. The law of employment at will considers the employee and employer to have equal power, an assumption that nurse employees know does not reflect employee-employer realities. For this reason, it is a harsh legal doctrine. An example is an employee who is terminated for reasons that are against the public good, such as for joining a union or serving on a jury. Courts have found ways to restrict this doctrine, but they are limited to public policy, implied contract, and good faith. Employees terminated against an implied contract are those who can show that this contract included hospital procedural manuals and personnel handbooks, employer’s conduct or policy, or (rarely) oral promises. An informed nurse employee must be familiar with such manuals and handbooks, document any oral promises, and get them in writing as soon as possible. What else can nurses do to enhance their protection as employees?