Nursing Licensure and Regulation
Edie Brous
“[T]he liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of private employment, but a right which is nevertheless subject to reasonable government regulation.”
—United States Supreme Court, Conn v. Gabbert, 526 U.S. 286, 291(1999)
The application process for nursing educational programs has become progressively more competitive. The accepted student must then meet the stringent academic rigors of a challenging curriculum, followed by successful completion of state board examinations before being initially licensed to practice. The extensive ordeals in reaching the qualifications for licensure have led some to believe they have earned the right to practice professional nursing. The practice of nursing, however, is not an unqualified right. It is also a privilege, and privileges must be preserved. To maintain one’s license in good standing and continue practicing, nurses must understand that rights are always accompanied by responsibilities.
This chapter will provide an overview of the regulatory processes, both those that are internal to nursing and those that impose obligations from outside the profession. While external regulatory schemes impact all health care providers, it is the internal process of self-regulation that greatly influences nursing practice and defines nursing as an autonomous profession.
Historical Perspective
Prior to 1903, nursing regulation in the United States was limited to lists or registries of those who had been trained as nurses. In 1903, North Carolina created the first board of nursing (BON) and enacted a Nurse Practice Act (NPA). Within 20 years, this had been followed by all other states. As nursing boards developed standards to define nursing practice and prevent unqualified persons from practicing, licensure became mandatory and each state developed an examination process toward that end (Damgaard et al., 2000). Members of each state BON met collectively with members of the American Nurses Association (ANA) Council on State Boards of Nursing. This gave way to the National Council of State Boards of Nursing (NCSBN) in 1978. Today there are 60 constituent member boards (including all 50 states and some U.S. territories). Educational requirements have been standardized and modernized, as has the examination process (NCSBN, 2009b). The NCSBN has published a model NPA and interfaces with the International Council of Nurses (ICN). The NCSBN and ICN have issued independent and joint position papers.
The scope of nursing practice has greatly expanded but remains state-specific at all levels of practice. Advanced practice nursing, as with RN, LPN/LVN, or nursing attendant practice, remains within the regulatory purview of each state or territory. The composition and authority of each board, the methodology for addressing complaints, the definition of professional misconduct, and the qualifications for remaining in good standing are examples of state-specific regulation. For this reason, nurses at all levels of practice must understand and abide by the NPAs of each state in which they practice.
The Purpose of Professional Regulation
The government has an obligation to protect its most vulnerable citizens. This social contract with the public is the reason nursing is a regulated profession. Those who are sick, infirm, young, elderly, disabled, or in any manner unable to advocate for themselves may be endangered by unqualified practitioners. Nursing regulation provides public accountability. A member of the lay public may not have the ability to recognize and protect himself or herself from incompetent providers. Government oversight of licensed nurses by a body of nursing experts is intended to keep patients safe by ensuring competence.
Sources of Regulation
Nursing Boards
The initial qualifications for licensure, continuing educational requirements, disciplinary procedures, complaint resolution processes, professional misconduct or unprofessional conduct definitions, mandatory reporting requirements, and specific scopes of practice are determined at the state level. Some states have separate licensing boards for registered nurses and licensed practical or vocational nurses, while other states have unified boards for regulating all nurses. BONs are given their authority through state laws or administrative procedure acts.
Health and Human Services
As stated on the HHS website, “[T]he Department of Health and Human Services (HHS) is the United States government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves” (HHS, 2009). Through various administrative agencies, HHS regulates issues such as civil rights, privacy, food and drug safety, the Medicaid and Medicare programs, health care fraud, medical research, technology standards, and tribal matters. It serves as the umbrella organization for such agencies as the Centers for Medicare and Medicaid (CMS), the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the Office for Civil Rights (OCR), among others. The integrity of all HHS programs is protected by the Office of the Inspector General (OIG) through audits and exclusion lists, as discussed in the following paragraphs.
Centers for Medicare & Medicaid Services
Medicare and Medicaid are government health insurance programs for qualifying individuals. Medicare is a federally-administered program available to persons 65 or older, persons under 65 with certain disabilities, and persons of all ages with end-stage renal disease. Medicaid is a state-administered program available to low-income individuals and families meeting federal and state eligibility criteria. Health care providers must be compliant with regulations and criteria called “Conditions of Participations” (CoPs) and “Conditions for Coverage” (CfC) to be eligible for Medicare or Medicaid reimbursement. The OIG may place a provider on a “List of Excluded Individuals/Entities.” The exclusion program is designed to protect the health and welfare of the nation’s older adults and poor individuals by preventing certain providers from participating in the Medicaid or Medicare programs. Nurses placed on the exclusion list may not be employed by any employers receiving state or federal funding.
The Joint Commission
Compliance with the Medicare and Medicaid CoPs may be demonstrated with Joint Commission accreditation (United States Code, 2009). The CMS will “deem” an organization as meeting certification requirements by virtue of having met The Joint Commission’s standards. Those standards include nursing performance elements such as policies and procedures, safety initiatives, reporting mechanisms, communication systems, sentinel events, quality improvement practices, staffing effectiveness, credentialing, and other performance indicators. The goal of The Joint Commission survey and accreditation process is to improve patient outcomes through improved performance.
Federal, State, and Local Law
Public health codes are laws enacted to promote community health and safety. They address emergency preparedness, communicable diseases, environmental controls, utilization of health care facilities, staff credentials and competency, policies and procedures, sanitation, housing, childhood nutrition, mental health issues, food safety, and many other elements related to nursing care. Public health laws exist at the local, state, and federal level and may be enforced by civil or criminal penalties.
Organizational Policy
Nurses are responsible to be familiar with their employer’s policies and procedures and to adhere to them. An organization’s protocols may be used to establish the practice standards to which the nurse will be held. They exist to provide standardization and consistency. Failure to abide by an institution’s rules may endanger patients and expose the nurse and the employer to liability.
Licensure Board Responsibilities
Protect the Public
The primary function of a BON is protection of the health, safety, and welfare of the public and maintenance of the public’s trust in the profession by ensuring that those individuals who engage in the conduct described in the Nurse Practice Act are properly trained and licensed. The state in which an applicant seeks licensure (by reciprocity or endorsement) must confirm that the applicant is, in fact, a licensee in good standing in another jurisdiction. To confirm that this is the case, state boards will perform licensure verification. Approximately 38 states participate in NURSYS®, an online process for providing immediate verification information to the requesting board.
Issue and Renew Licenses
An initial professional license issued by a nursing board is valid for the licensee’s lifetime, but the licensee must periodically register that license to continue practicing. The licensee must meet the board’s registration requirements to be issued a registration certificate. Such requirements typically include continuing education, clinical practice, the absence of a criminal record, and continued good moral character. The cyclical process of reregistering a license is commonly referred to as a renewal process.
To comply with their legislative mandate to protect the public, BONs define the required elements of nursing education. Graduation from a school that is accredited in one state may not meet the requirements for licensure in another state.
Investigation and Prosecution of Complaints
BONs are statutorily mandated to investigate all complaints against health care providers covered by the state’s NPA. Some cases may be resolved through informal procedures, while others require formal hearings. Licensees against whom a complaint has been lodged should be advised of the allegations and of their rights. Although nurses may represent themselves, it is strongly advised that they seek legal counsel when responding to Board inquiries, even when the allegations appear baseless.
Licensure Requirements
Examination
A candidate for entry into nursing practice as an RN or LPN/LVN must apply for licensure to a board of nursing and receive an Authorization To Test (ATT). He or she then may be allowed to schedule an appointment to take the National Council Licensure Exam (NCLEX-RN or NCLEX-PN). Successful completion of the examination is required to be granted an initial licensure.
Endorsement
A nurse currently licensed in one jurisdiction may be granted a license in another jurisdiction without retaking the NCLEX upon meeting certain conditions. Typically the requirements include graduation from an accredited program, English proficiency, clinical practice experience or a refresher course, and good moral character. Additionally, the nurse may be required to explain criminal activity or disciplinary actions in the home state. Interstate compact agreements may also allow multistate licensure (MSL).
Nursing Licensure Compact
A multistate compact, referred to by the NCSBN as a “mutual recognition model,” allows RNs or LPN/LVNs to work across state lines in certain circumstances. Nurses residing in compact member states known as residency or home states may practice in other compact member states known as remote states. Nursing practice must be compliant with the NPA and the nursing licensure compact administrative rules of each state. Nurses must remain within the specific scope of practice in the state in which they are practicing (the state in which the patient is located). Home states and remote states communicate through a coordinated database, and both may take disciplinary action against a licensee when indicated. A separate licensure compact for advanced practice nurses has not been implemented, but three states (Texas, Iowa, and Utah) have passed laws authorizing their participation (NCSBN, 2010).
Nurse Practice Acts
The state regulation of nursing occurs within the context of statutory mandates. Sets of laws enacted to protect the public specify the scope of practice for nursing attendants, LPN/LVNs, RNs, and APNs; outline the authority of the Board; define professional misconduct; and detail the investigation and disciplinary processes for resolving complaints.
Scope of Practice
The scope of practice for all levels of nursing has evolved and expanded considerably since the first NPA was enacted. Medical societies frequently react to advancements in nursing practice by challenging BON authority to define expanded roles, particularly regarding advanced practice roles. Medical societies have made arguments that advanced nursing practice encroaches upon the practice of medicine, specifically regarding NPs, Nurse Midwives, and Clinical Nurse Specialists. The American Medical Association (AMA), for example, has proposed or adopted resolutions opposing the creation of a board of midwifery and proposing greater physician oversight of midwifery practice (AMA, Resolution 204, 2008), requiring Doctors of Nursing Practice to function under the supervision and authority of physicians (AMA, Resolution 214, 2008) and “protecting” the terms doctor, resident, and residency by restricting their use to physicians, dentists, and podiatrists (AMA, Resolution 232, 2008). Such actions by the AMA consistently oppose the independent practice of other practitioners and declare the need for physician supervision and authority over all other providers. In 2005, the AMAs Resolution 814 even suggested that physicians should usurp the legislatively-granted authority of other licensing boards. Nursing organizations, such as the American Nurses Association (ANA), view these efforts as a divisive attempt to restrict the practice of other providers and presume authority over all professions. The use of terms such as “limited licensure health care provider,” “mid-level professional,” or “non-physician” reflects the AMA’s anachronistic view of all health care providers as physician extenders (American Academy of Nurse Practitioners [AANP], 2006) and inaccurately suggests that nursing boards do not keep patients safe.
Advisory Opinions and Practice Alerts
Many nursing boards release opinions regarding scope of practice, professional misconduct definitions, or delegation questions to clarify the board’s position on certain matters. These advisory opinions may be released independently or in conjunction with other organizations. Practice alerts may also be released advising the nursing community and the public at large of rule changes or urgent issues. Nurses should go to their BON’s website periodically to monitor such communications.
The Source of Licensing Board Authority
Nursing is regulated at the state level. Laws referred to as “Administrative Procedure Acts” or “Civil Procedure Codes” vary by state and determine the structure and authority of the BON. In some states, the BON is an independent agency, while in other states the BON operates under a larger state agency. Typically the BONs that are consolidated under larger umbrella agencies are functionaries of the Secretary of State, the Department of Health, the Division of Consumer Affairs, Education Departments, or other regulatory and licensing agencies. In yet other states, BONs are hybrid organizations, functioning as institutions that are partially independent and partially affiliated with other agencies. Rules and regulations for nursing practice may also be found in public health and general business laws. The court system generally supports the exclusive authority of the BON but will consider conflicts between employment practices and BON directions.
Courts may also hear conflicts between the BON and other agencies, as exemplified in K.C. et al. v. Jack O’Connell, et al. (American Nurses Association, et al., 2008). The American Diabetes Association (ADA) and the parents of several diabetic students brought a class-action lawsuit claiming that the California Department of Education (CDE) violated the educational rights of diabetic students. In the absence of adequate numbers of school nurses, the parents claimed they had to remove their children from the school or leave their jobs to administer insulin. The CDE settled with the parents and issued a “Legal Advisory on the Rights of Students with Diabetes in California’s K-12 Public Schools” in which local education agencies were required to train non-licensed volunteers to administer insulin.
The ANA, the California Nurses Association (CNA), and the California School Nurses Association (CSNA) challenged this legal advisory in court, arguing that the directive could not be followed as it violated the California NPA (ANA, 2008). The NPA specifically restricted medication administration to licensed nurses. While the matter was pending, the California Board of Registered Nursing issued a public statement (CBRN, 2007) in which nurses were advised to adhere to the NPA and practice in accordance with the Board’s standards.
The American Diabetes Association (ADA) intervened in the lawsuit, arguing that federal disability laws entitled diabetic students to insulin administration as a component of their educational rights. As such, in the absence of sufficient school nurses, schools were required to train unlicensed employees in insulin administration. The court ruled that the CDE legal advisory was unenforceable, as the CDE had exceeded its authority. The opinion stated that the CDE’s legal advisory conflicted with state law because the NPA clearly defined the administration of medications as nursing practice. Although the decision should imply that school funding decisions must include adequate nursing staffing, the case has been appealed. Legislation and public hearings are being conducted regarding the issue. Many BONs are considering this issue in home care as well as school settings.
Disciplinary Offenses
BONs investigate all complaints they receive. While gross negligence and unsafe practice are obvious sources of disciplinary action, many actions not directly related to patient care may fall within the definition of professional misconduct and result in disciplinary action. Failure to advise the BON of name or address changes, failure to repay student loans, failure to pay child support, driving under the influence, failure to file or pay taxes, dishonesty in licensure or job applications, falsified or deficient documentation and record-keeping, improper delegation, diversion of controlled substances, or criminal convictions are some examples of actions that may result in BON disciplinary action.
Complaint Resolution
The BON may offer the nurse an opportunity to settle the matter informally, rather than conducting a full hearing. A settlement called a Consent Order may be reached in which the nurse stipulates to certain findings and agrees to discipline that has been negotiated. Informal settlement conferences offer the advantage of lower legal costs and more rapid resolution of the complaint. The nurse may elect to attend a formal hearing rather than agree to a Consent Order if the settlement agreement offers a disciplinary action the nurse considers too harsh. A formal hearing may also be preferred when the disciplinary action of a proposed Consent Order would trigger an OIG exclusion.
Disciplinary Actions
The BON may close the file if its investigation finds no violations. The complainant will be advised that the investigation is complete and the matter is resolved. No action is taken against the nurse. The BON may find violations that can be addressed by issuing a letter of reprimand, but no other action. Letters of reprimand may be publicly posted as disciplinary actions. Nurses may also be fined, and/or ordered to attend corrective education.
For more serious practice or ethical issues, the BON may impose practice restrictions and place the nurse on probation. During the probationary period, the nurse may be required to submit periodic employer reports, demonstrate attendance in an impaired provider program, and comply with other terms. Licenses may also be suspended. The period of suspension may be actual suspension, during which time the nurse is not permitted to work, or stayed (temporarily set aside) during which time the nurse is permitted to work while remaining on probation.
The most severe penalty, revocation, is reserved for cases in which the BON believes the nurse presents a serious danger to the public and cannot be rehabilitated to safely practice. A revocation permanently terminates a person’s license, prohibiting practice and the use of nursing titles. The individual may no longer represent himself or herself as a nurse. The BON may entertain a petition for reinstatement after revocation in certain cases where the individual can demonstrate rehabilitation and competence. Mandatory waiting periods may be imposed before requests for restoration will be entertained, and formal restoration hearings may be required.
When faced with formal disciplinary hearings, some nurses may agree to voluntarily surrender their nursing licenses. In doing so, the nurse must understand that the forfeiture of the license is permanent. Such surrender still constitutes a disciplinary action tantamount to revocation. The surrender process, sometimes referred to as “Discipline by Consent,” is an application that the BON may or may not accept. Temporary surrenders may be negotiated for nurses who agree to enter professional assistance programs for impaired providers. Entry into such programs may provide immunity from further disciplinary action if the licensee meets all other required criteria.
Non-punitive peer assistance programs may provide an alternative to discipline but have not been uniformly adopted by all jurisdictions. Those states and territories that have adopted such alternative to discipline programs may require the absence of patient harm for nurses to qualify for participation. The ANA endorses these programs, stating, in part, that, “alternative approaches have been demonstrated to be at least as effective in protecting the public safety as more antiquated punitive methods. The ANA has resolved to work with these few states to pursue the legislative and regulatory modifications necessary to implement an ‘alternative to discipline’ model for impaired nurses” (ANA, 2010).
Alternatives to discipline programs may address impairment from mental illness as well as from chemical addiction. The use of a medical model, as opposed to a punitive model in addressing mental illness and/or chemical addiction is preferable because it is more consistent with the board’s stated goal of protecting the public. Additionally, such diversion programs allow the nurse to be rehabilitated and support reporting systems. Nurses working in states without such programs should become active in lobbying for their adoption. Some states have an additional category of license surrender called “Voluntary Relinquishment.” This is a form of surrender unrelated to disciplinary action, in which the licensee is retiring, moving out of state, or for other reasons choosing not to practice nursing in the state.
Appealing board decisions is a difficult, expensive, and frequently unsuccessful process. All internal administrative steps must be completed before seeking redress in the courts. The court will only reverse BON decisions under narrow circumstances. The licensee appealing a BON decision must prove that the BON has violated the constitution or the law, has exceeded its authority under the statute, that it took actions that were an abuse of discretion or arbitrary and capricious, or that the actions taken by the BON were unsupported by the evidence.
Collateral Impact
The emotional, financial, legal, and professional impact of BON disciplinary action can be profound. Evidence of board disciplinary action may be admissible in medical malpractice lawsuits, or in criminal prosecution. OIG exclusions and data bank listings may render a nurse unable to work, even when holding a license in good standing. Subsequent licensure in another profession or jurisdiction may be difficult or impossible to obtain. Reputation damage is very difficult to overcome. The emotional distress can be considerable, even disabling. Long after the BON has resolved the complaint, the licensee may continue to experience sequelae.
Regulation’s Shortcomings
Although professional licensing boards are entrusted with keeping the public safe, there is no evidence basis that the current regulatory system for BONs is effective in improving nursing practice. Some BON practices may, in fact, be antithetical to patient safety goals. Punitive cultures undermine patient safety by deterring essential error-reporting. BONs that fail to distinguish between intentional misconduct and inevitable human error perpetuate an ineffective response to adverse events by blaming the end user, or direct provider for the error. This sharp-end focus fails to account for the dangerous systems in which nurses practice and compromises the error-analysis process necessary to prevent recurrence. As opposed to latent-error focus, which does positively impact patient safety, such active-error focus has a paradoxical and perverse effect on patient safety initiatives.
The level of penalty imposed may be determined by the level of injury to the patient, which is both inequitable and counterproductive. Outcome-oriented discipline results in inconsistency from one licensee to another for the same infraction. Safety experts recommend evaluating processes, not outcomes. The public is not kept safe by imposing a harsher penalty on a nurse because the patient was injured. The nurse whose patient is not injured by the identical error may be a less cautious provider and actually pose a greater risk to patients but receives a lighter penalty with this approach.
Lengthy suspensions create rusty practice skills. The technical competence and knowledge required for safe practice are not enhanced by removing a clinician from the workforce. Practice deficiencies are not corrected by levying fines or publishing disciplinary actions on the Internet. Without addressing the underlying root causes and contributing factors of nursing errors, they will persist and endanger patients.
Public safety cannot be attained in the absence of nursing advocacy. Patients cannot be kept safe unless their providers are adequately supported. BON advisory opinions are often unavailable or inadequate. Statements such as, “Nurses should work collaboratively with their employers” or “Until the matter is resolved nurses are advised to use their best judgment” offer no direction to the practitioner faced with questionable work situations. While the NCSBN could provide an enormous amount of guidance, much of the Council’s published materials are restricted to board members and unavailable to the practicing nurse. Many NPAs use generic language when addressing “professional misconduct” or “unprofessional conduct” and do not provide definitions to guide practice or educate a nurse regarding potential violations.
The defense of a licensee may be compromised when the BON has information which the licensee is unable to access. Privacy and confidentiality provisions of the administrative statutes are sometimes written or interpreted in such a manner as to prevent even the target of the investigation from obtaining all evidentiary materials. The discovery rights to which a criminal or civil defendant would be entitled may not be afforded to licensees in an administrative action.
Disciplinary actions taken against licensees can destroy reputations and careers. As such, there should be an adequate appeal mechanism. Courts tend to defer to the expertise of the BON and uphold BON decisions. This deference is based upon a rationale that the BON’s unique nursing expertise distinguishes it as the most qualified body to render decisions. Disciplinary hearings in some states, however, may be conducted by non-nurse administrative personnel with absolutely no expertise in nursing.
The collateral impact of disciplinary action may be ultimately more destructive than the actual disciplinary action itself, even serving as a constructive revocation. Onerous practice restrictions compromise employment opportunities. A temporary suspension may be all that is required for OIG exclusion. The inability to practice for several years may make an eventual return to practice logistically impossible, regardless of licensure status. This undermines efforts to rehabilitate motivated professionals. Such constructive revocations contribute to the nursing shortage by accelerating the exodus of providers from the workforce. The consequent reductions in staffing levels endanger, rather than protect patients.
Board members may not be selected by members of the nursing profession. They are frequently appointed by the governor or some other state selection method. As such, appointees may be selected more by political motivations than qualifications the regulated community would find essential. BONs are bureaucratic structures, many of whom are underfunded and understaffed. Levels of efficiency vary. Due process rights in agencies differ substantially from due process rights in a court of law. The “right to a speedy trial” in the criminal system, as well as the standards and goals that move civil suits forward on mandated schedules, do not exist in the administrative setting. The investigative and hearing process can take months or years from initial complaint to final resolution. This lengthy process is traumatizing even to those nurses who are ultimately vindicated.
Most people understand the need for legal representation to protect their freedom and physical possessions in criminal or civil lawsuits, yet many nurses try to represent themselves with the BON. A professional license is also a valuable asset that requires zealous protection and skilled advocacy. Some BONs make telephone calls to licensees. In these circumstances, nurses may unknowingly make statements against their interest. Nurses may also sign agreements with the BON not understanding the long-term collateral impact of doing so. BONs do not always advise licensees that they can and should seek legal representation at all stages of the process.
Summary
It is critical that nurses read and understand their NPAs. Although all nurses make human mistakes, they should not unexpectedly find themselves defending their license for failure to educate themselves regarding the rules. Nurses must study and adhere to their state’s continuing education requirements, scope of practice, definitions of professional misconduct, reporting requirements, and standards of practice. Nebulous areas of practice should be identified to the BON, and advisory opinions should be requested. Clinical practice can only be evidence-based if nurses belong to professional organizations and regularly read the literature. Physical limitations must be respected to reduce the clinical error associated with sleep-deprivation impairment. If contacted by telephone, nurses should advise the BON that they wish to speak with counsel before making any statements or signing any papers. All nurses should independently maintain professional liability insurance rather than relying on employer coverage. Personal policies may provide the coverage for disciplinary actions and licensure defense that employer policies do not. A professional license is a valuable asset that may be considered a property right. It is not a right that can be taken for granted, however, and nurses can only protect their licenses by fully understanding the responsibilities that accompany them.
For a list of related websites, please refer to your Evolve Resources at http://evolve.elsevier.com/Mason/policypolitics/
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