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Dealing with Nurses and Their Attorneys in Discipline Cases Involving the Nurse

Licensure Compact

2015 NCSBN Discipline/Case Management Conference

June 3, 2015

Richard L. Masters, J.D. Special Counsel - NLCA

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Interstate Compacts

•  Agreements between states authorized under Article I, Section 10, Clause 3 of the U.S. Constitution – the “Compact Clause”

•  “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . . “ •  The U.S. Supreme Court has consistently held that Congressional consent is only required for compacts that tend to increase the political power of the states in a manner that encroaches upon or interferes with the just supremacy of the United States. [U.S. Steel Corp. v. Multi-state Tax Commission, 434 U.S. 452 (1978)]

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Uses of Interstate Compacts

•  Long history of compacts pre-dates the Constitution

•  Flexibility evident in variety of forms and uses: §  Scope: bi-state, regional, national §  Creation: negotiated §  Purpose: fixed agreements, advisory boards,

regulatory entities §  Issues: transportation, environment, taxation,

education, health, emergency management, corrections and public safety

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Uses of Compacts cont. •  Many well known compacts with all states:

§  NY-NJ Port Auth. Compact of 1921 §  Interstate Compact for Adult Offender Supervision

(2002); 50 states; D.C.; PR; U.S. VI §  Interstate Compact for Juveniles (2008); 50 states;

D.C.; U.S. VI •  Interstate Compact on Educational Opportunity for Military Children; 50 states; D.C.

•  Increasingly common, broader in scope, more frequent use for regulation including health professional licensure.

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Compacts

•  Approximately 200 compacts formed since the founding of the U.S.

–  About 38 are inactive –  On average, each

state is a member of 23 compacts

•  Creation of the Port Authority of New York and New Jersey in 1921 signaled a new era in regulatory compacts.

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3 Primary Purposes •  Resolve boundary

disputes;

•  Institutionalize and manage interstate issues pertaining to allocation of natural resources;

•  Create on-going administrative agencies that have jurisdiction over a wide variety of concerns:

•  State transportation •  Taxation •  Environmental matters •  Regulation •  Education •  Corrections •  Public safety

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Common Law Contract Principles

•  An offer to enter the agreement is expressed by statutory language enacted by the first state to join the compact and each subsequent jurisdiction accepts this offer by enacting statutory language, which is substantially similar to that enacted by the offering jurisdiction;

•  Once enacted by two or more states, a compact, like any other contractual agreement, is protected from impairment by the states under Article I, Section 10, Clause 1 of the U.S. Constitution;

•  Although a state cannot be bound by a compact to which it has not consented, once enacted a compact takes precedence over conflicting statutes of the state;

•  A state cannot unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.

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Congressional Consent Requirement

Art. I, Sec. 10 (Compact Clause) prohibits states from

entering into compacts without the consent of Congress.

•  Originally applied to all compacts – now only to those that:

§  alter the political balance within the federal system; or §  affect a power delegated to the federal government

-- Virginia v. Tennessee, 148 U.S. 503 (1893)

May be express or implied; may be given before or after the compact is created.

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Implications of Congressional Consent

–  Transformative effect: equivalent of federal law under the “law of the union doctrine.”Delaware River Comm’n v. Colburn, 310 U.S. 419, 439 (1940); Cuyler v. Adams, 449 U.S. 433 (1981); Texas v. New Mexico, 482 U.S. 124 (1987).

–  Relevant for jurisdictional and interpretative purposes, but also gives compact the weight of substantive federal law.

–  Compacts enforceable under the Supremacy Clause and the Contract Clause.

–  But they remain subject to control of party states, who may amend or repeal them.

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Absence of Consent

•  Where not required, the absence of consent does not mean a compact is unenforceable – it remains a contract between the states.

•  Article I, Sec. 10, Cl. 1 “No state shall . . . pass any . . . Law impairing the Obligation of Contracts” (U.S. Constitution, 1789)

•  Enforcement is ultimately achieved in the Supreme Court under its original jurisdiction.

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Compacts have standing as both

binding state law and as a contract between the member

states. A state law that contradicts or conflicts with a

compact is unenforceable, absent some reserve power to the

member states. McComb v. Wambaugh, 934 F.2d

474, 479 (3d Cir. 1991)

NLC and Discipline Issues

•  Which State is the “Home State” •  Did the violation occur in the Home State

or the Remote State? •  Investigations may be conducted by either

or both states but the home state must be contacted if the violation occurs in a remote state (See NLCA Policy 5.1)

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NLC and Discipline, cont.

•  Which State should take the lead? •  Factors considered include: Where the incident occurred Access to Witnesses Access to Respondent Ability to Obtain Evidence Public Risk involved Timely Case Processing

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NLC and Discipline, cont.

•  Compact States have the authority to issue subpoenas for both investigations

and hearings. •  Compact States are required to facilitate acquisition of requested records, including subpoenas and formal requests. (See NLC Art. VI B and NLCA Policy 5.2) 14

NLC and Discipline, cont.

Implications of Discipline in Remote State •  Remote state action affects only the privilege to practice in the remote state, but action taken by the remote state must be reported to the home state and entered into NURSYS (See NLC Art. V, Sec. A, Sec. C)

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NLC and Discipline, cont.

•  The home state may take adverse action based on factual findings in the remote state as it would if the conduct occurred there, under its own laws. (NLC Art. V, § D., § E).

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NLC and Discipline, cont. •  Implications of Discipline by a State Affects Ability to Practice in All Party Sts. (See NLC, Art. V (f); NLC Rule 3) •  Home State Boards are required to include in all licensure disciplinary orders or agmts to limit practice or require monitoring, a requirement that the licensee will agree to limit practice to the home state during the pendency of the order or agreement

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Due Process Issues

•  Investigations of alleged misconduct are permitted to be jointly managed by home and remote states based upon due process considerations including access to

witnesses, evidence, and timely ‘trial’ •  NLC prevents ‘double jeopardy’ because it precludes the remote state from any action other than limiting or restricting practice in that state 18

Due Process Issues, cont. •  Only the home state has the authority to

revoke or suspend the license •  If a remote state summarily suspends a

privilege to practice of a nurse whose license is not subsequently revoked, suspended or limited because it does not violate home state practice act, such nurse would be entitled to a ‘due process’ hearing. See Morrissey v. Brewer 408 U. S. 471 (1972); Gagnon v. Scarpelli 411 U.S. 778 (1973)

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Other Issues

•  Change of Residence to a new home state Factors in Determination •  Invalidation of Previous home state license Timing and Procedure * Review Q & A Document

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Questions

Contact Information: Rick Masters Special Counsel Nurse Licensure Compact Administrators Phone: (502) 262-5881 Email: rmasters@csg.org

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