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State Attorney General Opinions/Interpretive Documents (Nurse Licensure Compact) California STATE OF CALIFORNIA
TO: TERESA BELLO-JONES
DATE: March 18, 1998 FROM: Department of Consumer Affairs Legal Office Subject: Constitutional Issues Raised by Proposed "Nurse Licensure Compact" Pursuant to your request, we have reviewed the most recent and "final" version of the "Nurse Licensure Compact" (hereinafter referred to as the "Compact") dated January 9, 1998, which the Board received from the National Council of State Boards of Nursing. It is our understanding there have been concerns regarding the ultimate constitutionality of the compact. The purpose of this memorandum is to identify key constitutional issues which remain to be addressed. It is not meant to be a legal dissertation or opinion on the ultimate constitutionality of the Compact, but merely a guide to identify issues which may be problematic for the Board. QUESTION As currently drafted, does the proposed Compact raise any issues under the U.S. Constitution? ANSWER The constitutionality of the Compact as drafted is not a clear issue. The U.S. Supreme Court has struck down residency based licensing statutes that treat residents differently from nonresidents. Constitutional issues that immediately arise concern: (1) authority for states to enter into such a formal agreement absent Congressional approval; (2) possible violation of the Privileges and Immunities clause of the U.S. Constitution; (3) double jeopardy; and (4) difficulties in providing "full faith and credit" to disciplinary actions occurring outside the state. ANALYSIS There are a several constitutional concerns which rise under the proposed Compact. First, interstate compacts have not been traditionally used in the context of professional licensing. In fact, the closest existing model of a multistate licensure system is the so-called drivers license model. Consequently, if the compact is enacted by party states, there will be inevitable legal challenges to the system simply due to the fact that it is new and unique and there is no existing case law regarding interstate compacts in the context of professional licensing. Constitutional issues that immediately arise follow: Authority for State Compact and Congressional Approval of Interstate CompactsThe U.S. Constitution authorizes states to enter into formal agreements and compacts (U.S. Const. art 1, § 10, cl. 3.). Generally, the "compact clause" of the U.S. Constitution prohibits States from entering compacts without Congressional consent. Proponents of the Compact argue that caw law supports the position that only interstate compacts that infringe on federally regulated areas require Congressional consent. Because the Compact does not infringe on a "federally regulated area," proponents argue that the Compact does not require Congressional consent. Proponents state that the Supreme Court has approved interstate agreements even without congressional consent (See U.S. Steel Corp. v. Multistate Tax Com. (1978) 434 U.S. 452.) Nevertheless, Congressional consent may be required for states to impose discriminatory or burdensome regulations affecting interstate commerce, even in the absence of preemptive federal legislation. (See U.S. Const., art. I, § 8, cl. 3; City of Philadelphia v. New Jersey (1978) 437 U.S. 617; Oregon Waste Sys. Inc. v. Dep't of Envtl. Quality (1994) 511 U.S. 93; Pike v. Bruce Church Inc. (1970) 397 U.S. 137. To the extent that the Compact may have unintended consequences with regard to interstate commerce or some other federal purpose, there will likely be legal challenges absent Congressional approval. Privileges and Immunities ConcernsThe Privileges and Immunities clause of Article IV of the U.S. Constitution provides that "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states." (U.S. Const. art. IV, § 2.) This clause was intended to prohibit the discrimination against nonresidents of state simply due to the fact that the individual is not a state resident. As currrently drafted, the Compact contemplates a residency based license system in which each registered nurse and licensed vocational nurse would be limited to obtaining a single "nursing" license in the "home state" where he or she resides. Under the terms of the Compact, a nurse licensed in any compact state is granted the privilege to practice in any other state party to the compact. In the event the licensed individual is subject to discipline in another state party to the Compact ("remote state") for actions affecting a patient in the remote state, the remote state is authorized to take disciplinary or "'adverse" action against the individual affecting the privilege to practice within the remote state. However, the Compact provides that only the home state has the power to "impose adverse action against the license issued by the "home state." The home state may take disciplinary action based on the factual findings of the remote state, so long as each state follows its own procedures for imposing such action. Federal courts have been asked, on occasion, to review residency based distinctions associated with professional licensure to ensure that they do not violate the Privileges and Immunites clause or any other provision of the Constitution. There is only limited case law in this area. However. the Supreme Court has stated that the Privileges and Immunities clause does not preclude residency based distinctions where (1) there is a substantial reason for the difference in treatment; and (2) the "discrimination" "practiced against nonresidents bears a "substantial relationship" to the State's objective. Statutes that have been invalidated under this analysis include: residency requirements for professional licensure (Supreme Court of New Hampshire v. Piper (1985) 470 U.S. 274); preferential hiring of state residents (Hicklin v. Orbeck (1978) 437 U.S. 518); unequal commercial license fees Toomer v. Witsell, Ward v. Maryland (1871) 79 U.S. 418); and limitation of medical services to state residents (Doe v. Bolton (1973) 410 U.S. 179). As drafted, the Compact requires residency in a party state only to the extent that a nurse is entitled to a license that grants a multistate licensure privilege, by reason of the reciprocal arrangements among the party states. Under the Compact, individuals would be limited to a single license issued by his or her "home state" which is defined as the nurse's "primary state of residence." The Compact does not, however, limit the practice of nursing within a compact state to residents of compact states, nor does it distinguish between applicants for licensure between residents and nonresidents. The license that is granted to both residents and nonresidents permits exactly the same privilege to practice within its borders. Because one of the overall objectives of the compact is to increase the level of mutual recognition of nurse licensure among party states, proponents of the Compact would likely argue that the Compact would make it easier for a nurse licensed in one party state to practice in any Compact party state. Because this type of mutual recognition would enhance the ability for licensees to practice outside the state, proponents argue that the Compact is consistent with the Privileges and Immunities Clause. Nevertheless, the U.S. Supreme Court has not ruled on the constitutionality of residency based licensure statutes based on a model analogous to the proposed Compact. The fact that "home state" is defined in the Compact to mean "the party state which is the nurse's primary state of residence" raises some interesting practical questions in its administration. The term "primary state of residence" is not defined. Would it be possible for persons to simply self-designate a primary state of residence? Or is one's "primary state of residence" more limited to some kind of minimal actual physical presence in a particular designated "home state" for some length in time? Consumer protection also arise. Restricting licensure to one's primary state of residence does not necessarily make much sense in border state situations where one may live in one state and actually be employed in another state. For instance, in the event disciplinary action were to taken in a "remote state" against a licensee who resides in adjacent state the following would occur: The "remote state" disciplinary action would be limited to only preventing that individual from exercising their multistate licensure privilege in that "remote state." Only the "home state" has the authority to take disciplinary action on the individual's license. Consequently, despite the fact that an, individual's "primary state of practice" may be different than the state that one principally resides could lead to interesting results. In the situation just described, there may be no incentive for the "home state" to take any disciplinary action since all events occurred outside its borders. In addition, although an individual may be precluded or prohibited from practicing in a particular "remote state" due to a serious licensing violation, that individual could still practice in all other states party to the Compact until such time as the "home state" takes action on the license or when each other "'remote state" takes action for acts occurring in that state. This is a strange result with questionable consumer protection afforded in any of the party states. Another troubling aspect of the Compact results in comparing residents of two different compact states. For instance, assume State A has very high education and experience requirements for a type of license and State B has low standards. A licensed nurse resident in State A would be authorized to practice in State B and, likewise, a resident of State B would also be authorized to practice in State A due to the multistate privilege to practice in other party states. In such a system, the nurse in State A is treated unfavorably than the nurse in State B simply due to the fact that State A requires a higher standard than State B. Consequently, the resident nurse in State A is disadvantaged by the high standards and not in as good of a position than the nonresident nurse in state B. This is the converse of the traditional equal protection challenge, as a resident would need to bring an action against her own state for its preferential treatment of a nonresident. Strange result. Double JeopardyThe one license model as provided in the Compact raises concerns of potential "double jeopardy" issues. The Fifth Amendment to the U.S. Constitution provides protection against a second prosecution for the same offense and against multiple punishments for the same offense. (U.S. v. Halper (1989) 490 U.S. 435; 109 S. Ct. 1892.) Nevertheless, the U.S. Supreme Court has held that two identical offenses are not the same offense with the double jeopardy clause if they are prosecuted by different sovereigns (states). Consequently, double jeopardy is not an issue with regard to recognizing a sanction imposed by another state for purposes of imposing discipline in the home state. However. problems may arise where the discipline involves some other "property interest" other than the license itself. For instance if a nurse is disciplined by means of a monetary fine in a remote state, it is questionable whether the home state could also impose, a monetary fine for the same action. This becomes particularly problematic where party states have significant differences in the type of discipline administered. Double jeopardy will remain an issue in some circumstances where significant discipline is imposed in multiple jurisdictions for the same offense. Full Faith and CreditAs currently drafted, the Compact is vague regarding the extent to which party states will accord "full faith and credit" for judgments (judicial and administrative) entered in other states. Under the terms of the Compact; a remote state may impose sanctions, including revoking the right to practice in the remote state, against individual practitioners. Under the contemplated scheme, the home state may impose similar discipline against the practitioners license but is not required to do so since the practice laws and sanctions may be different among the party states. Likewise a case that was dismissed in one jurisdiction may be actionable in a different jurisdiction. Legal challenges may arise where one state does not recognize the final determination or judgment of a sister party state in administering discipline. The constitutionality of the Compact as drafted is not a clear issue. There is to direct precedent for the use of an interstate compact within the context of professional licensing. As such, this is uncharted legal territory, perhaps filled with unknown pitfalls. The aforementioned constitutional issues will remain to be tested in the event the Compact is enacted by party states. I trust this is responsive to your request. Should you have any questions or concerns please do not hesitate to call either Gary Duke or LaVonne Powell. DERRY L. KNIGHT By GARY W. DUKE By LaVonne Powell
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