BY, MS, MJ, CAE, AND , BA
The COVID-19 pandemic has dominated headlines for months, bringing into sharp focus the impact it has had on the healthcare workforce. Increased demand for nurses and medical professionals has brought the healthcare delivery system to the front line of the pandemic, and the emergent need for healthcare providers required states to take immediate action such as gubernatorial emergency orders related to licensing processes to deal with the crisis.
In many situations, states were forced to explore temporary suspension of occupational licensing laws to ensure and accommodate necessary emergency relief. The unprecedented number of patients affected by COVID-19 and the overwhelming effect it has had on hospitals and healthcare facilities resulted in all states, territories and the District of Columbia issuing emergency declarations, lifting state licensure regulations and, in some cases, issuing emergency license waivers to allow nurses licensed in other states to expedite their ability to practice and assist with disaster relief.
The rapid spread of COVID-19 cases across the nation forced states to respond to an overwhelmingly high demand for nursing assistance by quickly loosening cross-border licensing restrictions, resulting in dissimilar and often confusing state emergency orders.
There are numerous issues with the governor-issued executive orders. These orders often lowered the safety and practice standards, focusing more on the quantity of nurses available to help with growing COVID cases, rather than maintaining standards for nurse practice. With a high volume of applicants coming from out of state to assist during the pandemic, for noncompact states, it was difficult or impossible to get criminal background checks (CBCs) completed on all applicants due the fact that CBC services were either closed or unavailable. This increased the concern for patient safety.
Additionally, even though executive orders permitted nurses to come and assist in other states, there were issues with enforcement authority. If a violation occurred, states that did not issue the nurse’s license had no authority to take adverse action against the license. Finally, due to the temporary nature of the executive orders, they expired at different times in different states, posing issues for hospital staffing. Whether or not an executive order would be extended beyond expiration was often a last-minute decision from the governor’s office and thus a difficult process for healthcare professionals to manage the authority to practice of large volumes of nurses based on order expiration dates. For patients, this also posed an issue in terms of continuity of care. As emergency orders began to lapse, healthcare providers were forced to scramble to coordinate continued care post-executive order expiration.
If all states were a part of the Nurse Licensure Compact (NLC), many, many issues would have been avoided. The NLC would have allowed for expedited and, most importantly, safe access to licensed, qualified and competent nurses that were required to meet the same uniform licensure requirement standards, including submission to federal and state fingerprint based criminal background checks. Furthermore, if all states were members of the NLC, each state would have enforcement authority when a nurse from another NLC state is practicing in their jurisdiction. Expiration of executive orders and, in turn, nurses’ authority to practice would have also been a nonissue.
With COVID-19 far from over, many NLC advocates in noncompact states have expressed that the current crisis is solid reasoning for the remaining states to join the NLC.
Due to the unfortunate upsurge of health pandemics, natural disasters and catastrophic events that pose an unremitting threat to public health, a single-state licensure model no longer meets the mobility needs of today’s society, nor is it beneficial to nurses, patients or nurse employers. Without a doubt, the NLC, which enables nurses to hold one multistate license in the primary state of residency with the privilege to practice in all compact states, is quintessential for disaster relief, nurse mobility and license portability. If all states had been a part of the NLC, quality nurses would more easily mobilize to assist in relief efforts in states that were the initial epicenter for the pandemic such as Seattle and New York City.
We believe the COVID-19 outbreak is going to cause the states that are not in the compact now to really take a second look at it. If the NLC expanded to all 50 states, none of the guesswork with emergency orders would be necessary because nurses could travel to other states where they are needed. No applications, fees or background checks would be necessary. Disaster preparedness is a nonpartisan issue. The NLC is a solution to modernizing licensure and responding to disaster.
The current COVID-19 pandemic provides an opportunity to learn and consider implementing the NLC as both a simpler and more effective solution for improving patient access to care, nurse mobility and patient safety.
Nurse case managers, in particular, benefit from the Nurse Licensure Compact when the nurse resides in an NLC state, holds a multistate license and practices telephonically with patients in other NLC states. Had the nurse resided in a non-compact state, the nurse would be ineligible for a multistate license and would therefore need to hold a separate license in each state of practice, i.e., each state where the nurse’s patients are located during remote practice.
When a nurse interacts with a patient in the course of the nurse’s role, this generally conveys practicing with a patient. An employer requires that this level of interaction with a patient is done by a licensed nurse for a reason. The nurse has the background and expertise needed for this role. The license that a nurse holds provides the authority for the nurse to practice with a patient.
Oftentimes, practitioners do not realize that telephonic practice is indeed practice. We tend to think only of what is done bedside as practice. Telephonic practice is telehealth (tele-practice) at its most basic level. Telephonic practice with a patient is considered the practice of nursing because of how practice is generally defined in state laws. While there are variances from state to state, most states would agree that “practice” can be defined as when a nurse utilizes their education, background, knowledge, training, judgment, decision-making skills. In almost every case, where a nurse is performing as a nurse for their employer and a patient or client is involved, some of these defining elements are in play.
In order to practice as a nurse, a nurse needs to be licensed in the state of practice because nursing is an occupation that is regulated by states and requires licensure. That license issued by a state is valid for a certain jurisdiction or jurisdictions. For example, a license issued by the state of Oregon (a non-compact state) is valid for practice in the state of Oregon. It is not valid for practice outside of the state lines of Oregon. (One can certainly verify this with authorities at the Oregon Board of Nursing, for example.) This is the case for any state that is not a member of the Nurse Licensure Compact. When a state is a member of the Nurse Licensure Compact, a nurse who resides in that state may hold one multistate license. A multistate license is valid in every compact state – currently 34 states.
This takes us to the question of “where does practice take place?” In the example where a nurse is in Oregon and the patient is located in California, the actual practice takes place in California. Practice is not determined by where the nurse is located but by where the patient is located. The patient is the end-recipient of nursing practice. If the nurse and the patient were both in Oregon, then the practice would be in Oregon. The nurse should generally be licensed (or hold the privilege to practice via a multistate license) in the state where the patient is located at the time of nursing service. As an example, California states, “A California RN license is required for in-state or out-of-state RNs to perform telephone medical advice services to California addresses.” A nurse generally also holds a license in the state where the nurse is located. As the multistate license is issued in the home state, the NLC facilitates this.
Licensure provides the authority to practice as a nurse and is tied to the jurisdiction of states and U.S. territories. When a nurse is not licensed in a particular jurisdiction, the nurse does not have the authority to practice in that jurisdiction (except in the case where a state has a licensure waiver or exemption in place. These are often related to temporary or short-term practice). This is because each state has enacted laws for the protection of the health, safety and welfare of the citizens of its state. As such, each state decides what the licensure requirements are for an individual to be licensed in its state, based on what the state deems necessary to protect the public. This affords the patient easier access to the court system if they believe they have been injured by the actions of the nurse.
Each state holds nurses accountable for the practice acts and laws of the state, and as such, nurses must be knowledgeable of the laws of the state in which they practice. With reference to telehealth, state laws generally require that an individual in a licensed occupation be licensed in that state when practicing with a patient in that state. It is important to understand that telehealth has evolved over the past 20-30 years and is currently in hyper-development. Many pieces of legislation pertaining to telehealth are enacted each year. If a state were to not have a law on the books that required licensure by an out of state nurse today, and subsequently added such a law in 2022, for example, most employers and nurses would not have that on their radar. If the nurse were to be practicing in a state without a license in a state that required a license, the nurse can be found to be engaging in unlicensed practice. This puts the nurse at risk of discipline by the state board of nursing. If the employer also had obligations to ensure that the nurses in its employ were appropriately licensed, in this situation, the employer would also be at risk. (Many nurse-employers have such obligations to payors, CMS, accreditation agencies and agencies that license the employer.) While some employers may not have such risk, this does not eliminate the risk to the nurse-employee.
Bear in mind too that most states have mandatory reporting laws related to when a nurse is aware of a violation of the nurse practice act. Such laws are aimed at public protection. A nurse practicing unlicensed is reportable by employers or peers to the state board of nursing.
In summary, why does a nurse need to be licensed in the state of practice? 1) Because state law generally requires it. Those states that don’t have current telehealth laws will likely have them in the near future because of the growth of telehealth in the U.S. 2) To protect the nurse in the event of malpractice, whereby the nurse is a defendant in a claim and it is determined that the nurse was practicing unlicensed in the state where the patient is located.
It is not the Nurse Licensure Compact that requires a nurse to be licensed in each state of practice. State laws control this requirement. The Nurse Licensure Compact, rather, is the remedy to this problem. The problem being that nurses may be required to hold as many as 50 licenses based on where their patients are located. That is an unrealistic burden and expense. The NLC was created for the very reason that nurses need to hold a single license (i.e., the authority to practice) that is recognized by each state where their patients are located.
Organizations for nurses that do telephonic practice include the Case Management Society of America, American Association of Ambulatory Care Nurses, and American Association of Occupational Health Nurses. Each of these organizations can attest to the requirement for nurses to be licensed in the state where the patient is located. Further, the Tri-Regulator Collaborative affirms that in a consumer protection model, healthcare practice occurs where the recipient of healthcare services is located. (This collaborative is comprised of the regulatory associations for the fields of medicine, nursing and pharmacy.)
Although nurses have had a multistate licensure compact for 20 years, in recent years, the professions of medicine (physicians), physical therapists, psychologists, emergency medical technicians, occupational therapists, speech language pathologists and audiologists have each developed their own compact as well, due to the same issues: that a licensed healthcare professional must be licensed in the state of practice and the state where the patient is located. They also did this as a remedy to the issue of having to have multiple licenses in which to practice across state lines.
Costich; Scheer. (2020, June 17). Looming Confusion as COVID-19 State Emergency Orders Begin to Expire. Https://Thehill.Com/Opinion/Healthcare/503196-Looming-Confusion-as-Covid-19-State-Emergency-Orders-Begin-to-Expire.
Gaines, K. (2020, June 20). This is How COVID-19 is Changing the Future of Nursing for Students and Tenured Nurses. Https://Nurse.Org/Articles/How-Covid19-Changing-Future-of-Nursing-Students-Rn/.
Senate Approves Boscola Bill that Would Qualify More Nurses for Work in PA. (2020, June 24). http://www.senatorboscola.com/senate-approves-boscola-bill-that-would-qualify-more-nurses-for-work-in-pa/