Journal of Psychosocial Nursing and Mental Health Services

Original Article 

State Nursing Licensure Questions About Mental Illness and Compliance With the Americans With Disabilities Act

Margaret J. Halter, PhD, APRN; Donna G. Rolin, PhD, APRN, PMHCNS-BC, PMHNP-BC; Mona Adamaszek, MSN, PMHNP-BC; Miles C. Ladenheim, MD, Esq; Bridget Frese Hutchens, PhD, RN, CNM

Abstract

The current article describes a review of U.S. states and the District of Columbia boards of nursing pre-licensure applications, which were collected, summarized, and evaluated to assess compliance with the Americans With Disabilities Act (ADA). Less than one half (n = 21) of RN licensing boards do not ask questions about mental illness on pre-licensure applications. Of the 30 boards that ask questions about mental illness, eight focus on current disability, which is legal under the ADA. The remaining 22 boards ask non-ADA–compliant questions by targeting specific diagnoses, focusing on historical data in the absence of current impairment, and/or requiring a prediction of future impairment. Nursing boards are urged to join colleagues in law, psychology, and medicine in using ADA–acceptable applications by eliminating mental health questions or limiting them to current impairment queries. [Journal of Psychosocial Nursing and Mental Health Services, xx(x), xx–xx.]

Abstract

The current article describes a review of U.S. states and the District of Columbia boards of nursing pre-licensure applications, which were collected, summarized, and evaluated to assess compliance with the Americans With Disabilities Act (ADA). Less than one half (n = 21) of RN licensing boards do not ask questions about mental illness on pre-licensure applications. Of the 30 boards that ask questions about mental illness, eight focus on current disability, which is legal under the ADA. The remaining 22 boards ask non-ADA–compliant questions by targeting specific diagnoses, focusing on historical data in the absence of current impairment, and/or requiring a prediction of future impairment. Nursing boards are urged to join colleagues in law, psychology, and medicine in using ADA–acceptable applications by eliminating mental health questions or limiting them to current impairment queries. [Journal of Psychosocial Nursing and Mental Health Services, xx(x), xx–xx.]

In 2016, approximately one in five adults in the United States experienced a psychiatric disorder or condition, and of those adults, approximately 43% received treatment (National Institute of Mental Health, 2017). Like everyone else, nursing students and nurses are impacted by mental illness. The demands of nursing education, a challenging major, along with other common role expectations, such as parenting, being a spouse, and working full- or part-time, may increase vulnerability to psychiatric disorders (World Health Organization, 2018).

Psychiatric education may provide some support for nursing students. Although some schools and colleges integrate psychiatric content throughout the nursing program, many nursing students take a dedicated psychiatric course and clinical experience. During the course and clinical they learn about specific disorders and psychiatric care that is associated with those disorders. Often, faculty members encourage students to examine personal attitudes toward individuals with mental illness and recognize and dispel stigmatizing attitudes and beliefs. Students will, hopefully, learn about the importance of self-care and the resources available to their patients. It may, in fact, be during this rotation that they become aware of their own psychiatric symptoms and seek care for themselves.

After completing a rigorous nursing program, the National Council Licensure Examination (NCLEX) is the next milestone before beginning practice as a RN. However, some students may be concerned that their career is in jeopardy as they complete the pre-licensure application. Often preceded by questions about criminal convictions, questions pertaining to psychiatric diagnoses, treatment, and mental impairment are posed to applicants. Fears about not getting licensed and being prevented from practicing due to seeking treatment are common when these questions are encountered.

The National Council of State Boards of Nursing (NCSBN; n.d.) identifies the role of licensing boards is to protect the public and assure that licensed nurses provide safe and competent care. However, questions regarding mental illness on state pre-licensure applications are often in violation of the Americans With Disabilities Act (ADA; 1990). The ADA is a civil rights law that prohibits discrimination against individuals with disabilities, including psychiatric disabilities. Professional boards are subject to the ADA because they are empowered by the state. The violation at issue in this process concerns Title II of the ADA, which prohibits discrimination by public groups, such as licensing boards, based on disability. The specific regulation states that a “public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability…” (“Code of Federal Regulations,” 2010).

Other professions, such as law, medicine, and psychology, have addressed the issue of ADA compliance. They have scrutinized their respective state board applications and have made changes. The current article begins with a review of licensing questions from other professions. Following this review, an analysis is provided of state board of nursing pre-licensure application questions used in the United States.

Licensure Applications for Law, Psychology, and Medicine

Law Applicants

The U.S. Department of Justice (DOJ; 2014) alleged that Louisiana's process of admitting applicants to the bar violated the ADA. This allegation came about after two Louisiana attorneys responded in the affirmative to questions about mental health and found themselves facing a conditional admission to the bar. In addition, based on the information provided, Louisiana could also require all psychiatric records and attendance in mandatory treatment.

DOJ investigators concluded that targeting candidates with a specific disability, regardless of whether they had engaged in misconduct, violates the ADA. In response, Louisiana developed a new questionnaire that asks applicants to share details of their psychiatric history only if they want to use it as an explanation for misconduct. The focus moved away from simply being diagnosed with a psychiatric disorder to actual and current functional impairment. Louisiana was also required to pay $200,000 to reimburse candidates for expenses they had incurred while documenting their illnesses and acquiring statements from health care providers (DOJ, 2014).

The National Conference of Bar Examiners (2018) revised its model question to support ADA compliance by reflecting current impairment. The question now reads:

Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner?

If candidates respond yes, they are then asked if treatment, support, or monitoring reduces or removes the problem.

Psychology Applicants

Boyd et al. (2016) examined all psychology licensure applications in the United States. They found that a majority (n = 28) of states and the District of Columbia contain no questions about mental health. Another 11 states limit questions to current impairment. They also identified which states include language that would screen out an individual who had a history of mental illness, but who was currently functioning competently. Their analysis found that nine states might screen out competent candidates who were not experiencing current impairment. The authors recommended that state psychology boards omit questions about mental illness entirely, or limit questions to screen for current impairment (Boyd et al., 2016).

Medical Applicants

Medical students and residents fear disclosure of mental illness and some agree to treatment only on the condition of anonymity (Winter, Rix, & Grant, 2017). Many others avoid psychiatric care altogether. Aspiring physicians with a history of psychiatric care are put in the position of either omitting their treatment and fearing eventual exposure or telling the truth and fearing the consequences. Physicians living in states with overly broad questions about mental illness history on renewal applications are more reluctant to seek care (Dyrbye et al., 2017).

After the deaths of two New York City medical residents by suicide in 2014, the American Medical Association (AMA) Section Council on Psychiatry put forward a new policy (Moran, 2016). This policy urges state medical boards to eliminate licensure questions that ask about a history of mental illness and substance abuse treatment and to focus on current impairment.

A comprehensive review of medical licensure applications (Jones, North, Vogel-Scibilia, Myers, & Owen, 2018) determined that only seven of 50 states and the District of Columbia require no disclosure of psychiatric history and treatment. The authors determined that acceptable questions regarding current impairment were assessed by questions such as Massachusetts', “Do you have a medical or physical condition that currently impairs your ability to practice medicine?” (Mass.gov, 2018, p. 40). Eleven states had this type of query.

The remaining medical boards asked a variety of ADA–noncompliant questions, and some boards asked various combinations of ADA–violating questions:

  • Sixteen boards required individuals to predict future impairment. The Kansas application asks, “Do you presently have any physical or mental problems...which could affect your ability to competently practice...?” (Kansas Board of Healing Arts, 2018, p. 6).
  • Stigmatizing questions that focused on specific mental illnesses were asked by six states. For example, in Colorado, applicants are asked if they had or ever had “bipolar disorder, severe major depression, schizophrenia or other major psychotic disorder, a neurological illness, or sleep disorder” (Jones et al., 2018, p. 463).
  • Eight states required applicants to divulge whether they had been hospitalized for a mental illness or if they had ever been declared incompetent.

Method

State Board of Nursing Questions

All U.S. and District of Columbia boards of nursing pre-licensure applications were collected online and requested from some nursing boards that were not readily available. Each state and each state's questions pertaining to mental illness were summarized on a spreadsheet. Three authors (M.J.H., D.G.R., M.C.L.), including a practicing lawyer, independently scrutinized application questions for privacy violations. The three opinions were added to the spreadsheet, compared, and discussed until consensus was reached as to their acceptability under the ADA. Table 1 provides the guidelines used to determine ADA–compliant and –noncompliant questions.

Guidelines Used to Evaluate Compliant/Noncompliant Questions with the Americans with Disabilities Act

Table 1:

Guidelines Used to Evaluate Compliant/Noncompliant Questions with the Americans with Disabilities Act

Results

As of Spring 2018, approximately 41% (n = 21) of RN licensing boards did not ask questions about mental illness on pre-licensure applications. These boards were Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, and the District of Columbia. Not asking questions about mental illness is ADA compliant and considered to be the best practice based on precedents by law, psychology, and medicine.

Approximately 59% (n = 30) of nursing boards ask questions about mental illness. These questions range from being acceptable to questions that contain multiple problems. As previously stated, acceptable questions are those that focus on current impairment. A question that is satisfactory from the standpoint of the ADA is similar to Nevada's, “Do you currently have a medical or psychiatric/mental health condition which in any way impairs or limits your ability to practice the full scope of nursing?” (Nevada State Board of Nursing, 2017, p. 8). If an individual answers in the affirmative, the state board generally requests documentation of the diagnosis or condition, treatment, and a statement indicating fitness for health care from a practitioner.

Including Nevada, the eight state nursing boards that focus on current impairment are Illinois, Mississippi, New Hampshire, New Jersey, Tennessee, Vermont, and Wisconsin. Illinois uses the following statement to elicit current impairment:

Do you now have any disease or condition that presently limits your ability to perform the essential functions of your profession, including...i.e., [any] (1) mental or emotional disease or condition; (2) alcohol or other substance abuse; (3) physical disease or condition?

Tennessee's question about current impairment is overbroad. It could be construed to include “physical or psychological limitations and impairments” that have nothing to do with nursing.

A substantial number of questions go beyond current impairment and ask candidates to disclose psychiatric history in the absence of present limitations. In these historical-type questions, it is common to require applicants to look back for a specific period of time. North Dakota limits this time period to the past 2 years. Eight states, including Alabama, Alaska, Colorado, Florida, Montana, Ohio, Texas, and Wyoming, require applicants to disclose psychiatric symptoms and treatment over the past 5 years.

Many states ask for a prediction of future impairment. This ADA– noncompliant type of question is often referred to as hypothetical incompetence. This question requires applicants to predict how their condition may impact future practice. Eleven states' prelicensure applications contain predictions of future impairment, including Alabama, Colorado, Georgia, Indiana, Louisiana, Minnesota, Missouri, Montana, Oregon, South Carolina, and Utah.

Oregon asks the predictive question: “Do you have a physical, mental, or emotional condition that could impair your ability to practice nursing...with reasonable skill and safety?” (Oregon Board of Nursing, n.d., p. 4). Besides “could impair,” other terms associated with hypothetical incompetence include “may impair,” “may interfere,” and “might affect.”

In Utah, hypothetical incompetence goes a step further and includes overbroad descriptors. Future nurses are asked: “...Would you pose a direct threat to yourself, to your patients or clients, or to the public health, safety, or welfare because of any circumstance or condition?” (Utah Board of Nursing, 2012, p. 12).

Responding in the affirmative to mental illness history questions commonly results in boards requesting documentation. Alaska asks that a future nurse provide “dates, locations, and circumstances” and a “personal statement from yourself and a statement from your health care provider indicating your ability to safely practice nursing” (Alaska Board of Nursing, 2019, p. 4). Missouri instructs applicants to explain conditions or impairments “in a separate notarized statement” (Missouri Board of Nursing, 2018, p. 3).

Other areas of ADA noncompliance include labeling language and use of offensive terms. Ohio uses a label in the question, “Have you ever been found to be a mentally ill person...?” (Ohio Board of Nursing, 2016, p. 13). Utah inquires as to whether the applicant has ever been declared incompetent “by reason of mental defect or disease and not restored?” (Utah Board of Nursing, 2012, p. 12).

Finally, one board of nursing, Nevada, asks applicants to document psychiatric diagnoses that fall under Axis I–V. The multi-axial system was retired in 2013 with the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders and is not used in contemporary clinical practice.

Figure 1 provides a visual summary of state compliance with the ADA.

U.S. states and District of Columbia pre-licensure nursing applications by compliance/noncompliance with the Americans With Disabilities Act.

Figure 1.

U.S. states and District of Columbia pre-licensure nursing applications by compliance/noncompliance with the Americans With Disabilities Act.

Discussion

Twenty-one of 51 nursing licensing boards do not ask any questions about mental illness on pre-licensure applications. This number exceeds medicine, where only seven medical boards omit questions about psychiatric treatment history. These numbers contrast with psychology, where most boards (n = 28) have no question about mental health.

Safeguarding the Public

This article focuses on current prelicensure mental illness questions on state board applications and their compliance with the ADA. Questions pertaining to psychiatric conditions are included to safeguard the public with the same intent as criminal background checks. However, it is unclear how simply asking these questions and collecting treatment records protect future patients. Furthermore, licensing boards may not be best suited for making clinical judgements. The gatekeeper for initiating the licensing process is in the hands of educators who, over the course of years, assess the student's knowledge base, competency, skills, and ability to engage in safe patient care. Once licensing is achieved, employers will serve in a similar role as evaluator of performance.

Beyond the issue of ADA compliance, it would be useful to determine if the presence of questions regarding mental illness results in lower numbers of disciplinary actions in those states. The NCSBN does not collect data regarding the number of disciplinary actions that relate to mental health. In addition, there is no available literature to shed light on this topic. Further research in this area would be helpful to determine better ways to protect the interest of the public and support nurses with psychiatric disorders and conditions.

Structural Stigma

Nursing students learn about psychiatric disorders and psychiatric care. At the same time, the concept of stigma is also introduced along with its devastating impact. Stigma impacts nursing students with mental illness in several ways. At a personal level, students may feel flawed, defective, or somehow responsible for undesirable traits. These feelings too often result in reluctance to seek care and the concealment of the illness. At a social level, psychiatric disorders and conditions are often met with stereotypical appraisal, discrimination, and prejudice.

A not so well-known response to stigma is one that occurs at the structural level. This structural stigma takes the form of rules, policies, and procedures set by private and public organizations that limit opportunities and reduce help-seeking (Hendricksson, 2016). Asking overly detailed questions about mental illness history and requiring burdensome documentation are forms of structural stigma.

Working to the Fullest Extent of Training and Education

According to the Institute of Medicine (2011), the key to transforming nursing practice is for nurses to practice to the full extent of their training and education. This directive is critical in addressing future nursing shortages that are projected to spread from 2009 to 2030 (Juraschek, Zhang, Ranganathan, & Lin, 2012). However, state board of nursing licensure applications may inhibit nurses from being able to practice to their full capabilities by avoiding treatment. This avoidance could result in unnecessary disability or even death by suicide.

Other applicants may refuse to disclose treatment and then live with the fear of discovery and the self-recrimination for being deceptive.

Incremental Change

ADA–compliant changes to state board applications may happen incrementally. For example, the Ohio Board of Medicine's application question was worded similarly to the current Ohio Board of Nursing's application. Formerly, the application for Ohio Board of Medicine read:

Within the last ten years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? Have you, since attaining the age of eighteen or within the last ten years, whichever period is shorter, been admitted to a hospital or other facility for the treatment of bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? Do you have, or have you been diagnosed as having, a medical condition which in any way impairs or limits your ability to practice medicine with reasonable skill and safety?

The Ohio Board of Medicine altered their application to:

In the past five years, have you been diagnosed as having, or been hospitalized for a medical condition which in any way impairs or limits your ability to practice medicine with reasonable skill and safety?

Although the revised question does not use the term “current impairment,” it is stated in the present tense and is in keeping with the ADA. This question does not require all applicants to disclose their treatment history. Rather, it screens for individuals who are experiencing problems with day-to-day functioning who may put patients at risk.

Conclusion

The Louisiana settlement dramatically impacted state bar associations' mental health pre-licensure questions. This settlement resulted in the National Conference of Bar Examiners (2018) changing their model question to focus on current impairment. Psychology boards have eliminated stigmatizing questions in most states. The AMA instructed state boards to eliminate questions on mental illness history, and psychiatrists have been charged with monitoring these boards. Further, psychiatrists are encouraged to apply pressure if they encounter licensure applications that are contrary to the ADA.

Legal precedents in other professions, discussions, and state level advocacy should support pre-licensure applications that reflect professional values. Eliminating stigmatizing requirements will support candidates who successfully complete rigorous nursing programs and go on to productive and satisfying careers, strengthening the nursing workforce at large.

The current article highlights a common practice that, until recently, was accepted at the highest authority within the most respected of professions. Nursing boards can follow the lead of other boards, including law, psychology, and medicine, and develop ADA–acceptable pre-licensure nursing applications by either eliminating mental health questions or limiting them to current impairment queries. In the same way that psychiatrists have been charged with monitoring medical boards for ADA–compliant application questions, psychiatric nurses are charged to take the lead in monitoring and supporting this process for nursing boards.

References

Guidelines Used to Evaluate Compliant/Noncompliant Questions with the Americans with Disabilities Act

Best

No questions about mental illness.

Acceptable

Current impairment or competence

Recommended by the American Bar Association (National Conference of Bar Examiners, 2018):

Do you currently have any condition or impairment (including, but not limited to, substance abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner?

Current impairment may be implied by the use of present tense language:

“In the past five years, have you been diagnosed as having, or been hospitalized for a medical condition which in any way impairs or limits your ability to practice medicine with reasonable skill and safety?”

Unacceptable

Hypothetical Incompetence

Including a hypothetical element that requires the applicant to predict future impairment, e.g., “Do you presently have any physical or mental problems or disabilities which could affect your ability to competently practice medicine?”

Diagnosis List

This problem question focuses on diagnoses rather than conduct and penalizes individuals with mental health disabilities, e.g., “Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?”

Historical Questions

Asking questions about the past 5 years or since the age of 18 or any time in the applicant's life, e.g., “Within the last ten years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?”

Overbroad Questions

Overbroad questions are not an effective way to identify unfit applicants, e.g., “Have you within the past five years been treated or counseled for any mental, emotional, or nervous disorders?”

Authors

Dr. Halter is Advanced Practice Nurse, Akron, Ohio; Dr. Rolin is Clinical Associate Professor, and Director, Psychiatric–Mental Health Nurse Practitioner Program, University of Texas at Austin School of Nursing, Austin, Texas; Ms. Adamaszek is Psychiatric–Mental Health Nurse Practitioner, Bluebonnet Trails Community Services, Georgetown, Texas; Dr. Ladenheim is Attending Psychiatrist, Mental Health Court Psychiatric Consultant, and President of Medical Staff, Girard Medical Center, Philadelphia, Pennsylvania; and Dr. Hutchens is Adjunct Faculty, University of San Diego, San Diego, California.

The authors have disclosed no potential conflicts of interest, financial or otherwise.

Address correspondence to Margaret J. Halter, PhD, APRN, 967 Alder Run Way, Akron, OH 44333; e-mail: peggyhalter1@gmail.com.

Received: August 06, 2018
Accepted: February 21, 2019
Posted Online: April 11, 2019

10.3928/02793695-20190405-02

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