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.
•  Creation of the Port
Authority of New York and
New Jersey in 1921
signaled a new era in
regulatory compacts.
–  About 38 are inactive
–  On average, each
state is a member of
23 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)
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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)
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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
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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: [email protected]
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