Introduction

This article will describe a new model for nursing regulation put forth by the National Council of State Boards of Nursing (NCSBN) as the best response to major changes in today's health care delivery environment. First these major changes are delineated and the resulting regulatory issues are presented. Next various potential new regulatory models are described and the model that has been developed by the NCSBN is explained in detail including the components and implementation mechanisms for the model. Finally the current status of this model in a variety of states is presented.

One might wonder why nursing would embark on a major revision of the way nurses have been regulated for almost 100 years. Many groups have proposed consideration of alternative models for regulation such as institutional licensure, federal licensure and the Ontario model. The Pew Health Professions Commission Report, entitled Reforming Health Care Workforce Regulation: Policy Considerations for the 21st Century, issued in 1995, called for sweeping changes in health professions regulation in the United States. The question remains, is the system truly in such dire need of reform?

Nursing is reconsidering its regulation process today in response to the many inquiries to boards of nursing about regulatory dilemmas raised by changes in the health care practice environment. Innovations in the health care delivery system have driven many of these changes. Many questions are being raised because of the increasing number of nurses providing care across state lines and in situations in which the patient is in a different state than the one in which the nurse is licensed and located. These questions have been considered by the NCSBN, an organization comprised of the 61 boards of nursing in the U.S.A. and U.S. territories. Representatives of these boards gather periodically to consider legal and regulatory issues of mutual concern as well as the trends and issues on the health care horizon, which have the potential to substantially impact nursing and the way nursing is regulated. In 1994 the NCSBN began an in-depth exploration of the possible models of regulation to ensure public protection while ensuring safe and effective nursing practice in the next century.

Environmental Issues

Rapid change in three major systems in the nursing and health care delivery environment has created an irresolvable dilemma for the state-based nursing licensure system. These changes include a major reconfiguration of the health care delivery system, unprecedented technological advances, and enormous changes in the expectations of the health care consumer.

Restructuring of the Health Care Delivery System

Over the past 10 years, the health care delivery system has restructured significantly, including such changes as the transition from independent hospitals and facilities to integrated multi-state delivery systems. During recent years, the pace of hospital system mergers and acquisitions has been such that few facilities remain unaffiliated with larger integrated delivery systems. In fact, the number of multistate health care systems has grown exponentially, with some systems marketing their services throughout the entire country. Additionally, managed care has focused attention on revised mechanisms for payment of health care services. Fee for service is increasingly being replaced by capitation, resulting in shifts in the allocation of financial resources within many institutions. Finally, a well documented movement away from acute care to home care and assisted living has altered the landscape of the health care delivery system.

Technological Advances

At the same time the delivery system was changing, enormous advances in the use of technology were being incorporated into the delivery of health care services. With acceptance of the World Wide Web, many health care organizations implemented mechanisms for using this technology to enhance access to health care services and to provide more efficient care to those whose access to the traditional system is limited by distance and other factors. For several years, physician groups have been studying the regulatory issues related to the practice of telemedicine.

More recently, the federal government has appropriated large sums of money for telemedicine demonstration projects to gather data to determine whether use of telemedicine increases access to care without harming quality and produces a cost-effective alternative to traditional care. Leaders of western states have been particularly interested in using technology to overcome the barriers created by great distances between health care providers and consumers needing care.

Although managed care has been much maligned, the concepts of demand management and telephone triage have emerged as delivery mechanisms to provide services which utilize the new technologies to accommodate and maximize consumer access to care.

Although managed care has been much maligned, the concepts of demand management and telephone triage have emerged as delivery mechanisms to provide services which utilize the new technologies to accommodate and maximize consumer access to care.

A 1997 Wall Street Journal article speculated that by the turn of the century, over 100 million Americans will have access to a nurse via an 800 number. For example, Access Health, headquartered in Denver, handled approximately 80,000 calls per month in the fall of 1997; by the fall of 1998, that figure had risen to approximately 250,000 calls per month (Wolcott, 1998). National Health Enhancement Systems (NHES) of Phoenix, Arizona, has over 700 clients across the country who use the triage or call center services of NHES to augment their own community based practices, C. Becker, VP of Nursing NHES (personal communication, 1998). Both of these systems have been acquired by McKesson-HBOC, a leading software provider based in Atlanta. Other systems such as Kaiser Permanente maintain both a local and a national presence.

Although telemedicine has become an accepted term for provision of medical care across distance using electronic means, telenursing has been variously defined by a number of different groups. The NCSBN (1998) position paper on telenursing defines telenursing as "the practice of nursing over distance using telecommunications technology". Historically, telemedicine discussions have centered on consultation or other situations in which a licensed physician is in direct contact with another licensed physician, each maintaining a license in the state of practice. However, with the explosive increase in electronic nursing practice, the most typical pattern is that the nurse is direct contact with a patient.

Some might ask whether using electronic technology to provide care indeed constitutes the practice of nursing. In fact, there are those who suggest that, since electronic care does not include hands on care and that typically telephone triage nurses use physician approved protocols for reference, this practice is not in fact nursing practice. Nurse Practice Acts in all states define nursing more broadly than "hands-on care," therefore, a consensus has been reached by boards of nursing that a nurse utilizing the knowledge, skill, assessment, judgment and decision making inherent in nursing education and licensure is indeed practicing nursing.

Changes in the Expectations of the Health Care Consumer

A third major factor in the evolution of 21st century health care is the demand by consumers to be involved in decisions about their care. With acceptance of the World Wide Web, people have unprecedented access to information about the diagnosis and treatment of illness, often without appropriate safeguards to determine the accuracy or efficacy of the information or mechanisms to determine whether the information is appropriate for their particular need. Popular media and literature have flooded consumers with "disease of the month" stories and encouraged greater consumer involvement in health care decisions. The result of this paradigm shift is that consumers now expect to be a participant in determining appropriate treatment. The implications of this consumerism are profound:

1. Consumers will demand care when and where they want it.
2. Consumers will demand to be included in decisions about their own health care
3. Consumers are increasingly comfortable using technology to access health care information
4. Society will expect increased emphasis on health and healthy behavior.

Any one of these factors individually might have allowed health care delivery, as well as nursing regulation, to nurture the illusion of "maintaining business as usual." However, as these factors merge into a radically reformed expectation of health care providers, the question of whether current licensure (defined as the granting of legal authority to engage in certain practices) and nursing regulation (defined as the system of laws and rules that govern nursing practice) will be able to ensure public protection within a radically different structure arises.

Regulatory Issues

The health care delivery system is undergoing radical transformation, technological advances are providing the infrastructure for new ways of delivering care and consumers are expecting care in a manner more conducive to meeting their needs. The following paragraphs will delineate the implications of these changes for regulation and nursing licensure. Licensure and the state based regulatory system in the United States are founded in the Tenth Amendment to the U.S. Constitution, commonly referred to as the states' rights amendment. This principle facilitated state by state development of the regulatory system most consistent with the public protection needs in each state. Physicians were first regulated in the 1800s, with nursing regulation beginning with the creation of several boards of nursing in the early 1900s. Since that time, each state has established legislation authorizing nursing practice within the geographical boundaries of the state that issued the license.

States do not have the ability to grant a nurse authority to practice in other states. Thus, a dilemma has been created by the collision of the historical state-based licensure system and the recent transformation of the health care delivery system that is not confined to state boundaries. With the rapid escalation in electronic practice, especially across state lines, other questions have generated intense dialogue among health care providers as well as legal experts.

One issue, as yet undecided by case law, is whether care occurs at the location of the patient, at the location of the health care provider or both. Some speculate that since medical or nursing measures are generated by the provider, care must therefore occur at the location of the provider. In developing the model for regulation of medical practice across state lines, the Federation of State Medical Boards accepted the premise that care occurs at the site of the patient. However, many legal experts believe that it is unreasonable to expect a consumer to figure out where a person providing electronic health care is located and sort out the nuances of another state's regulatory system. Rather, a consumer will likely be afforded the public protection umbrella of the state in which the patient is located.

Rethinking Nursing Regulation

Increasingly, boards of nursing across the country have been asked questions about legal issues related to nursing practice across state lines. In 1994, the NCSBN Board of Directors authorized the beginning of formal mechanisms to evaluate and analyze nursing regulation in light of the massive changes in the technology and health care environments. After recognizing that the essential dilemma is that licensure remains state-based and state lines no longer bind nursing practice, identification of options and alternatives for 21st century regulation was initiated. Consensus was reached that the framework for consideration of the various models of regulation would be the goal of a state-based license, nationally recognized and locally enforced.

A number of potential regulatory models were identified and evaluated to determine whether the potential regulatory model could meet the stated goal. Among the regulatory models evaluated were:

1. Fast endorsement '” a speedy system for each state to approve each individual licensure application
2. Reciprocity '” a system in which states enter into agreement to accept each other's licensees without individual review
3. Corporate credentialing (a revised term for institutional licensure) '” a conceptual idea which involves issuance of a credential by an employer. Currently no legal authority exists for this system.
4. Ontario Model '” a system adopted in Ontario which focuses on authorizing certain professionals to perform specific "acts."
5. Mutual recognition '” a system used primarily in Australia and the European Union which facilitates states recognizing credentials as authorized by another state, i.e., the driver's license model, the system in the U.S.A. which allows a person licensed by one state to drive in other states.
6. Multistate license '” a conceptual idea for issuing a "special license" to authorize multistate practice.

After extensive deliberation about developing a new multistate license, it was recognized that the implementation issues were essentially the same as the implementation issues for mutual recognition, a regulatory system in which states enter into agreement to mutually recognize licenses of other states. The NCSBN study group determined that the regulatory system with the greatest potential of meeting the stated goal was an adaptation of mutual recognition. The advantages of this model are:

1. Authority is granted to practice in any party state
2. Dual jurisdiction for discipline is established
3. Uniform standards are not required
4. It can be phased in
5. A central licensee information system is a component of the infrastructure

The August 1997 NCSBN Delegate Assembly unanimously selected mutual recognition as the model for nursing regulation that best facilitates multistate practice. In December 1997, a special session of the Delegate Assembly approved language for an interstate compact.

Interstate Compact

The mechanism to implement the mutual recognition model of nurse licensure is the interstate compact. An interstate compact is an agreement between two or more states, entered into for the purpose of addressing a problem that transcends state lines. Compacts are created when two or more states enact identical statutes establishing and defining the compact and its role. The result is the creation of both state law and an enforceable contract with other states that adopt the compact. Nearly 200 compacts were in existence as of the early 1990s. These compacts govern a variety of areas, including natural resources, taxation, corrections and health, and may be regional or national in character. Interstate compacts may be used to settle jurisdictional issues; establish uniformity in the regulation of people or goods; determine rights to property, taxes and national resources; and establish formal cooperative arrangements between state agencies for the provision of services. Like any other contract, modification of the compact is only possible with the unanimous consent of all party states. In addition, because the compact is law, it is subject to the traditional principles of statutory interpretation. As statute, it takes precedence over prior statutory provisions. An interstate compact gains its forcefulness because of its dual contract/law nature.

The Constitution of the United States recognizes the authority of the states to enter into interstate compacts, and the Supreme Court has held that only those compacts that infringe on federally regulated areas require Congressional consent. The mutual recognition model for nursing regulation utilizing an interstate compact provides a mechanism for enabling mobility of nurses while maintaining a state based system of licensure and discipline. The compact establishes relationships between states in the areas of jurisdiction, discipline and information sharing. Congressional approval is not necessary for this compact because nurse licensure has always been regulated by the states and there is no reason that this compact infringes on an area of federal regulation. A state based licensure authority is maintained while mobility for nurses is facilitated. And, the consumer's access to safe and qualified nurses is expanded. The mutual recognition interstate compact is the mechanism to provide for practice across state lines, while the state Nursing Practice Act still remains the authority to regulate nursing practice in the state.

The mutual recognition model for the regulation of nursing (interstate compact) that was adopted by the NCSBN Delegate Assembly and enacted in Utah and Arkansas specifically addresses four areas:

1. jurisdiction,
2. discipline,
3. information sharing and
4. administration of the compact.

The interstate compact is drafted in a way that it is compatible with existing state law. Although the compact supersedes state provisions that are in direct conflict, all provisions that are not addressed by the compact, or are not in direct conflict, will continue to be in full force and operation. The compact was very carefully crafted to only address those issues essential to facilitate practice across state lines without unduly overriding state law.

Jurisdiction

To successfully regulate the nursing practice of an individual nurse, each state where the nurse practices must have jurisdiction over that nurse's practice. Licensure of the nurse in accordance with the state's Nursing Practice Act is the mechanism in the current regulatory system that establishes a state's legal jurisdiction. The compact calls for a nurse to be licensed in the state of residence or "home state" (this state must have signed on the compact.) The nurse needs to meet that state's licensure requirements and abide by the Nursing Practice Act and other applicable state laws, just as currently required. A rather substantial consideration in using residence rather than primary practice site as the link for licensure was that simply defining primary practice site posed administrative difficulties. Additionally using primary practice site would produce a substantial undesired outcome, namely, defining nursing practice in the compact rather than in state nurse practice acts. Defining practice in the compact would supersede state definitions of practice and could change state scopes of practice. This outcome was felt to be in direct opposition to the intent of the state regulatory law and rendered the primary practice site impossible to use.

Other states (who have signed on the compact) where the nurse practices, but does not live, are called "remote states." These states grant the nurse the privilege to practice in their state as a provision of the interstate compact. This is not an additional license. The nurse must hold an unencumbered license in the state of residence to have the privilege to practice in a remote state. The interstate compact addresses the area of jurisdiction only as it relates to practice across state lines. It does not define nursing, nursing practice or scope of practice, all of which are handled in state practice acts. The nurse practicing in a remote state is expected to practice within the scope and according to the standards of the remote state. This expectation is no different than what exists under the current regulatory system.

Discipline

Both the state of residence and remote state boards of nursing must be able to take disciplinary action in order to protect the citizens regardless of where the nurse or the citizen is located. Both the state of residence and remote state may take action to halt or limit the practice of an incompetent or unethical nurse in their state. The difference is only in the form of that action. The state of residence acts against the nursing license itself, (e.g., probation, suspension or revocation,) while the remote state acts against the practice privilege granted by the compact such as limiting or halting practice with a cease and desist order. It is important to note that both processes include due process for the nurse and the effects of both such actions are essentially the same.

Under the interstate compact, the nurse has authority to practice on an expanded scale, that being the ability to practice in a larger number of states. Likewise, in the compact the states' board of nursing authority to discipline matches the nurse's authority to practice.

The broadening of authority to practice in several states necessitates the broadening of information sharing to allow state boards of nursing to discipline, if discipline is needed.

The broadening of authority to practice in several states necessitates the broadening of information sharing to allow state boards of nursing to discipline, if discipline is needed.

In the current regulatory system, most state boards are authorized to take disciplinary action based upon action in another state. This occurs sequentially, with one state taking action then other states following. The nurse is afforded due process according to each state's laws. Under the interstate compact, state boards of nursing will be able to concurrently cooperate in the discipline process and likewise the nurse is afforded due process according to each state's laws. National Council is currently undertaking several activities to demonstrate and refine the discipline process. These activities include development of distance technology to facilitate the discipline process.

Information Sharing

An essential component of the interstate compact is the ability for state boards of nursing to have timely licensure and discipline information on each nurse. The compact provides for reporting and maintenance of licensure and discipline information. The NCSBN, in concert with its membership, has committed to improving the Disciplinary Data Bank system and to developing licensure information for endorsement. The states that joined the interstate compact for driver's licenses had to develop a not for profit entity to administer their information system, with financial support from the federal government. With the adoption of the mutual recognition model for nursing, NCSBN, as a not for profit agency with an established relationship with the state boards of nursing, will add the information system improvements needed to accomplish mutual recognition. It is important to note that the information system is a closed, secure system primarily for use by the boards of nursing, with levels of limited access to comply with providing public information to employers and consumers (as exists under the current regulatory system.)

Administration of the Interstate Compact

Finally, the interstate compact provides for the ability to administer the compact through the formation of compact administrators. The compact defines the compact administrators as the head of the nurse licensing authority in each participating state. And the compact gives the compact administrators the authority to write rules and regulations to implement the compact.

Much like in the situation of the state Nursing Practice Act, the act specifies what will be regulated, and the state rules and regulations specify how the act will work. The interstate compact specifies what will be agreed upon between states, and the interstate compact rules and regulations specify how the states will work together. An example is defining the primary state of residence. The compact states that nurses will be licensed in their primary state of residence. There are several definitions that are in current use for primary state of residence. The compact administrators will decide on the best definition and annotate it in the rules. If, at a later date, a better definition comes forth, the definition can be altered without legislative action. The interstate compact rules will go through review in each state according to that state's laws, with comments returning to the compact administrators.

The interstate compact is written in such a way as to define the legal framework with the allowance for detail to be addressed in the rules. The compact can be thought of as an overlay to the state Nursing Practice Act. It is drafted in a way that it is compatible with existing state law, carefully addressing only those issues essential to facilitate practice across state lines without unduly overriding state law. The interstate compact accomplishes the goal of simplifying the processes and removing governmental barriers so as to increase access to nursing care.

Current Status

Eight states introduced the nursing regulation mutual recognition interstate compact during the 1999 legislative session. The status as of submission of this article is as follows:

• Arkansas: Adopted and signed by governor
• Iowa: In process
• Maryland: Adopted and awaiting governor's signature
• Nebraska: In progress
• North Carolina: Passed one house and introduced in the other
• Texas: Passed one house and introduced in the other
• Wisconsin: In progress
• Utah: Adopted and amendments to compact already passed last year

Based on surveys, it is anticipated that eight to twelve additional states are considering introduction of the interstate compact legislation in 2000.

Summary

If the mutual recognition model were adopted in every state, nurses would have sound legal authority to practice in any state where the patient care need arose. Additionally, consumers would be ensured that nurses are held accountable in each state in which nursing care occurs. Implementation of this model adheres to the mandate of a state-based licensed, nationally recognized and locally enforced. Additionally, it provides a solid foundation to ensure public protection as the health care delivery system continues to evolve. It facilitates sound legal authority for nurses to maximize their ability to provide care when and where it is needed by consumers.

Authors

Carolyn Hutcherson MS, RN
E-mail mailto:hutcherc@arentfox.com

Carolyn Hutcherson joined the National Council of State Boards of Nursing as Senior Policy Advisor in 1994. Her responsibilities include monitoring state and federal legislation for potential impact on nursing and nursing regulation, coordinating networking activities with relevant organizations and analyzing trends and issues related to health care and nursing. A component of this role is coordination of efforts to ensure sound regulatory approaches to the regulation of telehealth practice. Prior to assuming this role, Ms. Hutcherson was Executive Director for the Georgia Board of Nursing and has been active in a number of professional organizations. She has experience in nursing education, clinical practice, community and public health and health policy

Susan H. Williamson MPH, RN
E-mail swilliamson@ncsbn.org

Ms. Williamson is currently the Director of the Credentialing and Practice Department of the National Council of State Boards of Nursing, Inc. Chicago, IL; and a registered nurse with special emphasis on public health and children's health issues. Her background is extensive and well balanced in issues related to public health, SIDS, hospice work, and organizational development. She has filled the roles of Nurse Administrator and Nurse Consultant to crippled children's and child health programs, Lieutenant Colonel of the U.S. Air Force Nurses Corps, and Executive Director and Chief Executive Officer of the Georgia Nurses Association, holding that position for over eight years.

A current resident of Chicago, IL, Ms. Williamson is a Georgia native from Kennesaw Mountain. She received her Masters in Public Health from the Emory University School of Medicine in Atlanta, and is a member of the international Honor Society of Nursing, Sigma Theta Tau. She is an active member in her alumni association, nursing task forces, and has served on several boards of directors.

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