LICENSE JURISDICTION FOR INTERSTATE PRACTICE

WHEREAS, state boards of nursing are adopting policies or attempting to enact statutory requirements that may inhibit the provision of nursing care across state lines. As there is no clear, consistent state or federal policy regarding the location of license jurisdiction, it is imperative that the profession, through state and specialty organizations and in partnership with state boards of nursing, influence the development of appropriate policy for this traditional and growing practice; and

WHEREAS, while many states have enacted legislation or have established policies for licensing those who provide nursing care within their borders (Rutenberg and Greenberg, 2012), this approach lacks applicability and feasibility when care is provided across borders. It is not clear that such policies are enforceable because states likely do not know which providers are interacting with their residents. In many cases, with the advent of cellphone and Internet contacts, providers may not know the location of their patients; and

WHEREAS, requiring a license in each state where a patient receiving "telehealth" services might be located, even on a brief episodic basis, creates new barriers to both established and emerging practices, and increases costs in a changing healthcare environment; and

WHEREAS, any policy that endorses the need for licensure in every state in which a patient might be physically located at the time of the encounter with a nurse will inhibit nurses from sharing information with patients and adopting best practices. Such requirements would come at a time when we, as a nation, are working to create increased efficiencies in our healthcare delivery system by facilitating the transfer of information from nurses to their patients, thereby increasing timely access to care; and

WHEREAS, nurses have used technology for decades to interact with patients. Follow-up phone calls to determine the condition of a patient discharged from a hospital have been a routine practice. Poison control centers, which provide services to a multistate region, have provided valuable and timely lifesaving care to patients with intentional or accidental exposures. Both of these practices have historically involved nurses talking with patients in the same state and in states different from that of the nurse. While past use of remote patient contact has primarily been by telephone, more advanced technologies are now available and others, such as robots, real-time video, and electronic mail are being developed; and

WHEREAS, the appropriate use of technology to provide care will facilitate efficiency particularly for patients in remote areas, for those with physical and transportation challenges, and for those who choose to utilize alternatives to traditional face-to-face consultations. An increasingly mobile population that communicates with healthcare providers with cellphones and the Internet is very likely to receive healthcare services from a provider located in another state. For example, many retired individuals choose to live part of the year in warm climates of the Southwest United States. If their primary provider is located in a state and they need advice about a healthcare situation, their care will occur via the telephone, video technology, or email. Simple follow-up calls such as those made by emergency department nurses are often made to cellphones, making it difficult or impossible to know in which state the patient is located. In both scenarios, holding a license in all states in which a patient might be located lacks feasibility; and 

WHEREAS, while reimbursement policies for such technology-based "visits" have lagged, the use of electronic and other media for giving and receiving healthcare services is expected to continue growing. Standards for primary care are increasingly incorporating a variety of patient interactions, including phone and email; and

WHEREAS, providing care to a patient who is not in the same location as the provider raises questions about where the encounter is actually occurring. Some assert that because the patient is choosing the provider, he or she is "coming to the visit" by electronic means rather than being physically present with the provider. Alternatively, others believe that the "visit" takes place at the patient's location. While this may seem a small distinction, it raises the question of license jurisdiction (Hutcherson, 2001); and

WHEREAS, licensure requirements for nurses who provide technology-enabled care across state lines can vary. This coupled with a lack of statutory authorization in some cases can make them unclear. For example, the Oregon State Board of Nursing advises nurses that they must be licensed in Oregon to provide care via the telephone or other technologies, but no statutory authorization or board policy exists to support such advice. The Washington State Department of Health Nursing Commission reportedly gives similar advice, despite verbally acknowledging the lack of statutory or policy authority. Conversely, in California, "telephone medical advice" was made part of the Business and Professions Code and requires California licenses for employees of businesses with at least five full-time equivalent staff. Massachusetts has statutory authority requiring a state license for nurses from another state who provide telecommunication care to patients in Massachusetts; and

WHEREAS, at the federal level, in 1998 the Healthcare Financing Administration developed reimbursement policies for "telehealth." These policies determined that the site of practice is the site where the provider is located. In 2011, the Centers for Medicare & Medicaid Services (CMS) issued a final rule for "Hospitals and Critical Access Hospitals Conditions of Participation: Telemedicine Credentialing and Privileging," which required licensure in the state where the patient is receiving telemedicine services. In the agency's comments, however, it defers to state laws related to licensure:

RESOLVED, that the American Federation of Teachers supports license jurisdiction at the location of the provider; and

RESOLVED, that the AFT, with healthcare professional associations, state and federal legislative and regulatory bodies, advocates for policy regarding the location of license jurisdiction for interstate practice, including telehealth, that meets the following criteria:

• Supports the evolution of practice and legal authority;
• Promotes and supports high standards for the profession;
• Promotes patient access to safe and effective care;
• Promotes access to nursing services in all geographic locations;
• Preserves state authority;
• Promotes the least cost for regulated professionals;
• Promotes cost efficiency;
• Requires the least infrastructure;
• Affords the simplest regulatory structure and processes possible;
• Recognizes mobility of healthcare consumers and providers; and

RESOLVED, that the AFT provides support to AFT affiliates to advocate for the proposed policy with their state board of nursing, and to members to assist in advocating for the proposed policy in state legislatures and agencies; and

RESOLVED, that the AFT publishes information about innovative nursing practice activities that use technology and assess their impact on quality, access and cost.

References

• American Nurses Association, Nursing World: Interstate Nurse Licensure Compact: States Participating in the Nurse Licensure Compact; linking to the National Council of State Boards of Nursing (NCSBN) map (2012): http://www.nursingworld.org/ MainMenuCategories/PolicyAdvocacy/State/Legislative-Agenda-Reports/LicensureCompact.

• California Business and Professions Code. Division 2, Chapter 15, Section 4999-4999.7. Retrieved from http://www.leginfo.ca.gov/.html/bpc table of contents.html.

• Gaffney, T. (May 31, 1999). The regulatory dilemma surrounding interstate practice. Online Journal of Issues in Nursing, Vol 4, No. 1, Manuscript 1.

• Hutcherson, C. M. (September 30, 2001). Legal considerations for nurses practicing in a telehealth setting. Online Journal of Issues in Nursing, Vol. 6, No. 3, Manuscript 3.

• King, S. E. (May 31, 1999). Multistate licensure: Premature policy. Online Journal of Issues in Nursing, Vol. 4, No. 1, Manuscript 3.

• Massachusetts Statute. 244 CMR: Board of registration in nursing. Section 9.02 and 9.03(4). Retrieved from http://www.mass.gov/eohhs/docs/dph/regs/ 244cmr009.pdf.

• Oregon Health Authority (2011). Standards for recognition: Patient centered primary care home. Retrieved from http://www.oregon.gov/oha/OHPR/pages/healthreform/pcpch/standards.aspx.

• Rutenberg, C. & Greenberg, M. E. (2012). The art and science of telephone triage: How to practice nursing over the phone (pp. 81-106 & pp. 607-633). Pitman, N.J.: Anthony J. Jannetti, Inc.

• State of Washington Administrative Code, Title 246, chapter 2460840, Section 246-840-700: Standards of Nursing Conduct or Practice, http://apps.leg.wa.gov/WAC/default.aspx?cite=246-840-700.

• State of Washington Nursing Practice Act, RCW 18.79.030: Licenses required—Titles: http://apps.leg.wa.gov/RCW/default.aspx?cite=18.79.

• U.S. Government Printing Office. Conditions of participation: Medical staff. Electronic code of federal regulations, Title 42, Part 482.22. Retrieved from: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfrbrowse/Title42cfr482 main02.tpl.