I OFTEN WARN YOU that whatever general guidance I offer should be tempered with the cautionary TV Guide line: "Check your local listings." The reason is twofold. First, nursing practice changes constantly and can vary from state to state. Second, your employer may enact different restrictions or interpretations on the practice of nursing in your locality. This raises the question of whether nursing is a purely state-based practice phenomenon or if federal law has any say in how nursing is practiced throughout the United States.
Nursing licensure and practice is a state-by-state statutory phenomenon. Each state has laws and regulations by which their boards or councils of nursing are established, and the states establish their own practice acts and nursing regulations. But many federal laws directly affect nursing practice in the various states.
Take, for instance, the Food, Drug & Cosmetics Act (FD&C Act).1 This federal law specifically directs the approval, marketing, selling, buying, and dispensing of every prescription and over-the-counter drug in the United States. So, as one might imagine, federal law does indeed impact state-level nursing practice.
A topic near and dear to me as an NP is the requirement in many states for mandatory physician oversight of NP clinical practice. This required oversight, in my view, lumps NPs and other advanced practice registered nurses (APRNs) into the same category as physicians' assistants, who must work with constant physician oversight as a condition for practice. Here, we find one of the areas where federal law may be directly changing the legal landscape at the state nursing practice level.
In 2008, the APRN Consensus Model, promulgated by the APRN Consensus Work Group and the National Council of State Boards of Nursing, provided a national framework for the accreditation, licensure, certification, and education of advanced practice nurses in four roles (certified registered nurse anesthetist, certified nurse midwife, clinical nurse specialist, and certified nurse practitioner) and six population foci (family/individual across the lifespan, adult-gerontology, pediatrics, neonatal, women's health/gender-related, and psych/mental health).2 The debate over the autonomous practice of APRNs has generated, in the scope of the APRN Consensus Model, quite a buzz and a push to adopt the APRN model in states with APRN practice restrictions. Maryland very recently adopted autonomous practice for APRNs consistent with the consensus model.3 Delaware has similar legislation pending in the General Assembly.
The recent push for adoption of the consensus model by multiple states may be due to an advisory opinion published in March 2014 by the Federal Trade Commission, which opined that state restrictions imposed on autonomous, independent APRN practice may well violate the competition goals of the Commerce Clause of the federal constitution, making any such restriction potentially unlawful.4 While only advisory in nature, this opinion is an extremely strong statement in opposition to state-imposed restrictions on full, independent APRN practice. This policy statement is a good example of how federal agencies may directly affect nursing practice, a truly state-based statutory grant, at the state level.
So, the take-home message is that although state nursing practice is a creature of the state legislature, the feds are out there. Federal agencies can, and often do, have both indirect and direct effects on your state nursing practice and the state laws that govern your scope of practice.
Until next time: Stay safe and keep it legal!
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