Sustained support of policy initiatives by nursing have resulted in significant legislative victories. One victory, the passage of the 1938 New York State Todd-Fell Act which underwent legislative debate at a time when the nurse labor market was in disarray, during an economic depression, and prior to US entry into World War II, reinforces our understanding that nursing must be a strong shepherd for policies beneficial for health care delivery. Designed to correct serious deficiencies in the nursing workforce the Act successfully required licensing for those working as registered and practical nurses. Yet, its provisions failed to stop all unlicensed nurse workers from practicing. Rapid changes occurring in the nurse labor market against the backdrop of growing hospital power over the employment of all nurse workers minimized the Act’s effectiveness. Policy implications include the need to focus on the complex nature of health care policy initiatives, flexibility in the face of changing circumstances, and acceptance of political realities.
Keywords: legislation, policy initiatives, nurse labor market, nurse practice actThe American Academy of Nursing’s advocacy for legislation affecting the provision of health care and health care services, demonstrated most recently by its strong endorsement of the Patient Protection and Affordable Care Act (ACA) combined with the leadership it has taken to insure delivery of safe, accessible health care to the American public is commendable and historically consistent (American Academy of Nursing, 2013). Policy positions endorsed by the Academy echo those of previous generations of nurses who took on the job of utilizing public policy initiatives to create positive change in the ways American access and receive health care. In its advocacy for the ACA, the Academy continued a strong tradition of nurse activism in promoting policies which result in legislative action. This paper examines a previous point in nursing’s history when nurses exercised their power to effect policy change through the passage of the 1938 New York State Todd-Fell Act, the first state nurse practice act which required a license in order to work as a nurse.
At the beginning of the 20 th century the profession advanced legislation which both enabled nurses to assume new roles and insured access to professional nursing services to larger number of constituencies. On a federal level, nurses achieved a significant victory as early as 1901 when the Associated Alumnae of the United States, the forerunner of the American Nurses Association (ANA), effectively promoted the establishment of the Army Nurse Corps (Sarnecky, 1999). Subsequent efforts at legislating laws favorable to nursing and the public concentrated on passage of early state nurse registration acts. These early registration acts centered on the idea that the public good demanded nurses who were clearly identified through a registration system as possessing basic education and skills in caring for the sick and met specific criteria and standards as promulgated by the state. Nurses claimed triumph in regulating nursing practice when by 1923 all states then in the Union had some form of nurse licensing (White, 1980). Yet, although political activity and policy making consumed a considerable amount of professional nursing’s time and effort, it has not always received significant historical attention, analysis, or acknowledgement.
The Todd-Fell Act, the first of the mid-20 th century nurse registration acts which required state licensing for “all who nurse for hire,” and was intended to build on and strengthen the initial registration acts is an example of one piece of nurse supported legislation receiving little scrutiny. Although successful at achieving a long held goal of nurses, the passage of a nurse practice act mandating that anyone working as a nurse must be licensed, the act failed to achieve one of its most important aims, that of conclusively defining and strictly regulating who may and may not practice nursing and subsequently permitted a group of unlicensed nurse workers to flourish.
I argue that nurses sought mandatory nurse practice acts as a way to correct serious employment problems in the nurse labor market and to protect the public from unlicensed nurse workers. Hospital administrators initially supported nursing’s efforts but ultimately manipulated government-required nurse licensing for their own purposes. Unique conditions in the nurse labor market that first created a demand for state intervention in regulating nursing practice and later threatened the full implementation of the act, weakened the act’s effectiveness overall. The 1938 Todd-Feld Act is a compelling example of how effectively the nursing profession can attain legislative victories intended to promote safe patient care. At the same time, as we contemplate how the health care system will change pending the full implementation of the ACA, this analysis provides a meaningful historical lesson in demonstrating the dangers in either predicting the outcomes of government mandates or relying extensively on them.
Efforts to obtain government regulation of nursing practice date back to the early 20 th century when nurses chose securing state licensing as a major strategy to promote the use of professional nurses by the sick public (In this paper the term professional nurse indicates a graduate of a school of nursing. Registered nurse indicates a professional nurse who holds a state license). In 1903, the New York State Nurses Association (NYSNA), a leader in the initial licensing movement, successfully lobbied for one of the strongest nurse practice acts (Andrews, 1903). Pride in this accomplishment was tempered by the knowledge that as a voluntary statute the 1903 act possessed an inherent weakness; the provisions of the act, as did all state nurse practice acts of the time, applied only to those using the title registered nurse, not to all who actually worked as nurses (Tomes, 1983). Anyone could hire out as a nurse as long as they did not claim to be a registered nurse. Undeterred, in 1913, NYSNA began to work toward more restrictive legislation in the form of a mandatory licensing law stipulating that only those licensed by the state could work as nurses. This effort failed and in 1920 a weaker nurse practice act replaced the 1903 version (Tomes, 1983; Pavri, 2000).
Historian Nancy Tomes (1983) identified two important factors which undermined the effectiveness of both the 1903 and the 1920 acts. First, voluntary acts depended on the compliance of eligible nurses to seek registration. For a number of reasons many did not. Second, most nurses found the possession of a license to be of questionable value in their daily working lives. The majority of early 20 th century professional nurses were private duty nurses who worked as independent contractors hired by individual patients for delivery of care. As the patients for whom nurses worked were under no obligation to check credentials, many professional nurses simply did not obtain a state license. Although effective at establishing and improving nurse education standards, the initial nurse registration movement failed to attain a nursing workforce composed entirely of nurses who met the minimum criteria of graduation from a school of nursing (Pavri, 2000; Tomes, 1983).
Further hindering professional nursing’s efforts to achieve control and predominance over nursing practice was the presence of large numbers of untrained nurses in the nurse workforce. In 1920 and 1930, the U.S. census classified approximately 150,000 persons as “nurses, not trained” (Department of Commerce, 1930). This group of workers, often referred to as subsidiary workers, were a disparate collection of semi-trained and untrained workers who competed with professional private duty nurses for patients, yet were out of reach of state regulation. Many in this group demonstrated proficiencies similar to professional nurses; others were less skilled and helpful only with the mildly ill. Although professional nurses hoped that licensing laws would guide patients in distinguishing the trained from the untrained, the issue of unlicensed nurse workers was quite complicated and invited attention from a number of interest groups.
Leading experts in the health care field viewed the existence of a secondary level nurse worker as a necessary and useful element in the care of the sick and called for licensing such workers via a state sponsored system (Gilmore, 1925; Howland, 1920). Licensing subsidiary workers within the practice of nursing but subordinate to the registered nurse would diffuse competition among nurse workers for patients, provide professional nursing with the control leaders demanded, and recognize the realities of contemporary sick care practices (Goldmark, 1923). The prestigious foundation-supported Committee on the Costs of Medical Care (CCMC) in examining economic factors affecting health care delivery strongly recommended establishing a new group of lesser-trained nurses, labeled trained nursing attendants. The CCMC envisioned nursing attendants filling a gap in nursing services not provided by professional nurses for home based patients by supplying low cost, basic nursing services and additional household duties as necessary. The CCMC placed strong emphasis on the nursing-housekeeping functions attendants would perform, their role in caring for non-hospitalized chronic patients, and the need for adequate supervision of attendants via a state licensing system (Committee on the Costs of Medical Care, 1932).
Hospital administrators represented another group drawn into the discussion of subsidiary workers. During the first half of the 20 th century, hospitals began hiring larger numbers of different types of workers. Hospitals seeking to stem the rising costs of hospitalization sought lower cost attendants, orderlies and ward maids as appropriate adjuncts in the delivery of increasingly more complicated care of the hospitalized sick (Buerki, 1928; Mac Eachern, 1930).
In reports on nursing completed during the 1920s two differing views on how the profession should address the subsidiary worker issue emerged. The 1923 Nursing and Nursing Education in the United States vigorously promoted the licensing of a secondary level nurse worker (Goldmark, 1923). Yet, in 1925, the Committee on the Grading of Nursing Schools de-emphasized subsidiary workers’ role, affirming the primary position of the professional nurse in delivery of care, and expressly discouraging the use of subsidiary workers (Burgess, 1928).
Cognizant of the numbers of non-professional nurses working in the nurse labor market and eager to solve problems of competition and competence raised by subsidiary workers, the three major nursing professional associations, the ANA, the National League of Nursing Education and the National Organization for Public Health Nursing, subsequently addressed the issue with the 1940 release of Subsidiary Workers in the Care of the Sick, which defined the major, pre-World War II professional nursing policy positions regarding subsidiary workers. The nursing organizations agreed there was a role for subsidiary workers both in hospital nursing services and in the home; that the nursing profession should outline principles and policies to control these workers, that subsidiary workers should be licensed by the state, and that subsidiary workers assigned duties could be determined in advance by carefully listing activities and functions within their realm of practice (Joint Committee, 1940)
Predating the publication of these positions, New York State in 1938 created a state sponsored licensing system for secondary level nurse workers with passage of a mandatory nurse practice act requiring licensing for all who nurse for hire. However, as circumstances in New York State illustrated, the complex conditions in the nurse labor market that led to passage of that legislation resisted efforts to create order through state regulated nursing practice.
New York State stood out as having a particularly chaotic nurse labor market. In 1930, the most populous state in people was also the most populous in nurses with an estimated 70,000 individuals, both licensed and unlicensed, hiring out as nurses (Horner, 1934). Anxious to deal with an overcrowded labor market and firmly establish the status of legitimate professional registered nurses, NYSNA in 1933 began preparing recommendations to improve the 1920 act (BOD, 1933, April 29).
NYSNA was aware that others in the health care field, particularly hospital authorities, paid close attention to the Association’s actions. Controversial provisions in the 1920 nurse practice act prevented many nurses who had graduated from non-New York State schools from obtaining New York State licenses. In turn, this act restricted New York hospitals from hiring unlicensed, but otherwise qualified out-of-state educated nurses. The Hospital Association of New York State (HANYS) enthusiastically sought a new act easing the requirements for non-New York State educated professional nurses. Recognizing the political advantages of having HANYS on its’ side, NYSNA set out to fashion a practice act meant to achieve greater regulation of nursing practice by nurses and at the same time address the needs of hospitals. NYSNA carefully solicited and won the support of HANYS in their legislative campaign (BOD, 1932, June 6; 1933, September 29).
The movement for a new act received significant support in 1934 with the release of a State Education Department study Nursing Education and Practice in New York with Suggested Remedial Measures. Known as the Horner Report, the study provided the data and statistics necessary to validate assertions that the nurse market was overcrowded, underpaid and in need of greater regulation. The Report estimated there were approximately 32,404 active professional registered nurses and 36,579 unlicensed nurses for a total of 68,983 individuals working as nurses in New York State in 1930. In one eight year period, the total number of active working nurses increased 82 percent while the state’s population grew by only 22 percent. The Report documented extremely low income levels and severe underemployment for all working nurses (Horner, 1934)
The Horner Report attributed the overcrowded labor market conditions to two simultaneous circumstances. Hospitals within the state, dependent on students for patient care, continued to enroll and graduate nurses from their schools without offering nurses employment. Further, the lack of state restrictions over nursing practice allowed unregulated growth of unlicensed workers. Many considered some in the unlicensed group competent to work in a subsidiary role; no one thought them qualified for the autonomous practice typical of professional private duty nurses. Especially irritating to nursing groups was the belief that unlicensed workers often passed themselves off and charged the same rate to patients as the more qualified professional registered nurses. Registered nurses accused the unlicensed group of unfair competition and blamed them for the generally low income received by nurses.
The Horner Report recommended passage of a mandatory nurse practice act with the inclusion of a new nurse classification, the licensed practical nurse, as a means of resolving two major problems. A more stringent nurse practice act would eliminate unqualified people hiring out as nurses, decrease the numbers seeking work and improve nurse income levels. Further, a new act would satisfy health care leaders who called for lesser-trained nurse attendants by establishing a cadre of second level nurse workers to care for the growing number of long-term, chronically ill, homebound patients. Based on the conclusions of the Report, NYSNA drafted a bill for a new nurse practice act creating a practical nurse level and requiring licensing for “all who nurse for hire.” As well, the bill provided a definition of both professional and practical nursing distinguishing between the two fields of practice and included penalties for violations of the law (Proceedings, 1936, October 12).
The bill, introduced in the 1937 legislative session, received wide support from a number of groups including the state medical and hospital associations (BOD, 1936, November 8). Nevertheless, opposition killed the bill. A second attempt resulted in the act’s passage (Pavri, 2000). The act, known as the Todd-Feld Act passed in 1938 making New York the first state in the nation to have a mandatory nurse practice act (Editor, 1939).
Happiness with achieving statutory nursing practice requiring licensing of all who nurse for hire evaporated quickly when delays in enforcing the mandatory aspects of the act began. Immediately after passage of the Act the New York State Board of Nurse Examiners received an overwhelming amount of applications to process adequately in time for the 1940 effective date. An amendment delaying the mandatory provisions until 1941 passed with NYSNA’s approval. Individuals could register under the two levels of the Act but licensing would not be obligatory for practice as a nurse (Report of the Secretary, 1941). Further requests for postponements followed. In December 1941, HANYS claimed a shortage of nurses within the state would create a hardship for hospitals if adherence to the mandatory provisions was required. As the country entered World War II, a 1942 amendment to the Act delayed implementation of the mandatory provisions until six months after hostilities ended. Persistent nurse shortages extended delays in implementing the mandatory aspects of the Act beyond the war years. Postponement of mandatory licensing at the request of HANYS continued until 1948 when NYSNA was able at last to secure an amendment requiring enforcement. In 1949, New York State finally achieved mandatory nursing practice licensure when the “all who nurse for hire” provision was made a requirement (Pavri, 2000).
How could implementation of an act designed to correct urgent problems in the nurse labor market and receiving wide support in the health care community undergo a decade long delay? Examination of the changing character of the nurse labor market, the inherent difficulties in defining the borders of nursing practice, and the growing power of acute care institutions to control nursing practice explains what seems to be at first glance a paradoxical situation.
During the 1930s, registered professional nurses shifted their predominant field of employment from private duty to staff nursing (ANA, 1939; Reverby, 1983). The drive to hire registered nurses was fueled by the increasingly more technological care delivered to patients, expansion of hospital insurance plans which boosted hospitalization rates and a growing movement to shorten the number of hours nurses worked which required more nurses to cover twenty-four hour patient care. As hospitals grew more dependent on professional nurses as workers, acute care institutions became intensely sensitive to alterations in professional nurse supply. Reports of sporadic hospital nursing shortages began appearing as early as 1935 (Branton, 1935; Buerki, 1936).
Controversy arose over whether a real shortage of nurses existed. Nursing leaders astutely pointed out that a true shortage would cause nurse wages to rise in response to increased demand, a situation not happening (A suggested way, 1938). Hospital administrators responded that nurses were not living up to their responsibilities to take care of the sick. Citing the primary obligation of hospitals to provide care, administrators proposed the solution to nurse shortages was to hire more workers of a subsidiary status for direct patient care (Buerki, 1936; Editor, 1938). Using rhetoric that placed the blame on professional nurses, American Hospital Association (AHA) president Robin Buerki threatened, “We must develop a group of attendants who can take up the work which the nurse is relinquishing” (Buerki, 1936). Practical nurses and nurse aides were to serve as substitutes for the perceived absence of registered nurses.
Once New York State passed the Todd-Feld Act, short-staffed hospitals were quick to take advantage of the new group of licensed practical nurses. Although practical nurses were originally meant to work in home care, once practical nurse education programs began operating in the late 1930s, hospitals eagerly began hiring them (Goldsmith, 1942). Given the growing enormity of the nursing shortage it seemed reasonable that hospitals took advantage of the new group of licensed personnel (Deming, 1946). Studies completed during the 1940s demonstrated that anywhere from 30 to 70 percent of graduates of practical nurse programs entered hospital employment (U. S. Women’s Bureau, 1953).
Still, the number of licensed practical nurses remained insufficient to meet hospital needs for nursing staff. Hospitals turned to a second type of auxiliary worker, the nurse aide, to further supplement staffing. Hospitals found the nurse aide an ideal type of worker. An aide, trained for a specific set of duties, required minimal instruction and could be moved from department to department, or from job to job, as patient needs demanded. As the lowest worker in the nursing hierarchy, the nurse’s aide received a minimum pay rate. During and after World War II personnel-starved hospitals increasingly relied on a variety of assistive personnel to care for patients (Editor, 1944). By 1949 an estimated 200,000 individuals worked in some type of nurse aide capacity nationwide (ANA, 1950).
As the number of institutionally employed aides increased, determining in what category their duties fell proved problematic. Although many of the assistive and housekeeping jobs aides carried out were clearly outside the range of nursing some tasks were not so easily divided. Nursing groups referred hospital authorities to the AHA’s publication, The Manual of the Essentials of Good Hospital Nursing Service when considering how to use workers (American Hospital Association, 1942). Yet, hospitals, under no obligation to do so, could ignore AHA recommendations when making day-to day job assignment decisions.
During the 1940s, delay in enforcing the mandatory aspects of the Todd-Feld Act lessened the statutory need for hospitals to clearly differentiate nurse aide practice. However, as the 1949 enforcement date approached, the situation changed drastically. The Act did not address the realm of nurse aide practice, defining only the practice of professional and practical nursing. Interpretations of the Act placed the responsibility for determining both practical nurse and nurse aide duties on either the hospital employer or in a home care case, the physician in charge (Creamer, 1939; Handelman, 1949; NYSNA, 1949, April 4). Hospitals rejected giving up lesser-trained workers they were accustomed to using as nurse substitutes and reversed their original position on mandatory nursing practice, actively opposing efforts requiring licensing for all persons delivering nursing care (Nursing Situation Takes Spotlight, 1948).
Prior to its passage, HANYS’s strong support for the Todd-Feld Act was in hospitals’ best interests. Hospitals required easy verification that those they hired were safe practitioners. The Todd-Feld Act offered a state supported system of checking credentials for the growing numbers of registered and practical nurses appearing on hospital staffs in the late 1930s. A decade later, HANYS continued to agree that the goals of required licensing were laudable. Nevertheless, HANYS claimed public interest demanded abandoning restrictive licensing rationalizing that it threatened adequate nurse staffing. In the Association’s view, hospitals provided adequate supervision for unlicensed personnel (Exemption, 1948). HANYS referred to the prominent role nurse aides assumed in contemporary care delivery as sufficient justification for their position that requiring all who nursed for hire possess a license represented not a protective mechanism for safe care, but rather a danger to patients as it limited who could work in hospitals. (Albany center, 1949).
Editorials in both state and national hospital journals rallied hospital groups in opposing enforcement of the mandatory provisions (Editor, 1947; Editor, 1949). Calling the New York State “all who nurse for hire” provisions a threat to good hospital care the editor of Hospitals in 1947 urged legislators to continue suspending application of the mandatory requirement (Editor, 1947). NYSNA, able to defeat this last effort publicly identified the real motive behind the hospital association’s stance as merely continued hiring of cheaper workers (Constantine, 1949; History of the Nurse Practice Act, 1949).
NYSNA contemplated that the 1938 Act would serve three purposes; improve employment opportunities for registered nurses, establish a mechanism for control of subsidiary workers, and exclude unfit nurses by requiring a license for “all who nurse for hire.” By the time of enforcement in 1949, the three issues of employment, control, and exclusion deemed critical to nurses in the early 1930s, either lost significance or remained resistant to resolution.
Reducing underemployment for registered nurses, the prime driving force behind mandatory licensing, became irrelevant in the face of long-term nurse shortages experienced in the 1940s and 1950s when demands for more nurse workers of any type drowned out professional nursing’s calls for better qualified practitioners (Editor, 1948). By 1946, estimates were that the United States was short 100,000 registered nurses (Bureau of Labor Statistics, 1947). Nurses, who in the 1930s faced poor employment prospects, by the 1940s, enjoyed a wealth of job opportunities. In turn, nurse poor hospitals sought nurse substitutes of any type to fill their staffs, viewing stricter licensing requirements as impediments to hiring lesser trained workers for care delivery.
Licensing second level nurses, in the form of practical nurses, controlled by nursing through the State Board of Nurse Examiners, was clearly the most successful goal achieved by the Todd-Feld Act (Thompson, 1949). But two levels of nursing practice originally envisioned failed to materialize. Rather, a three level sub-division of nurse workers composed of two licensed workers, the registered and practical nurse and one unlicensed nurse aide evolved. Hospitals resorted to using increasing numbers of ancillary personnel as nurse substitutes claiming their prerogative to provide workers to care for patients in a financially responsible manner allowed them to use employees as they believed best even when that meant ignoring the “all who nurse for hire” provision (Hyde, 1950). The Todd-Feld Act failed to eliminate all unlicensed persons from carrying out nursing duties.
In July, 2013, the Obama administration announced a delay in implementing one portion of the ACA (Calmes & Pear, 2013). Laws often involve adjustments and fine-tuning before final implementation and this delay will not substantially affect the overall enactment of the ACA, the remaining portions of which are slated to go into effect on time. The delay does serve however as a reminder of the complex nature of policy initiatives and highlights the relevance of many of the critical lessons learned by nurses during the events surrounding the passage and enactment of the Todd-Feld Act.
Most noteworthy, the delay in enforcement of the mandatory provisions of the Todd-Feld Act held serious consequences for its effectiveness. The extended length of time between passage and enforcement allowed hospitals to devise and establish nursing staff patterns incompatible with the goals of mandatory licensed nursing practice, and which they refused to alter once established. Further, the speed with which the nurse labor market changed made the original purpose behind the Act irrelevant and its measures obsolete.
Shifting and changing political alliances made them unreliable predictors of long-term support. HANYS initial support was instrumental, perhaps critical, in obtaining passage of the Todd-Feld Act. Yet, it was built on hospitals’ self-interest that evaporated in the face of changing circumstances. Coalition building and political partnerships are necessary but offer tenuous political backing, a reality that requires consideration when reaching out to potential allies. Nurses came to understand as they do today that carrying out effective policy initiatives requires compromise and acceptance of political realities; realities that often include unforeseen events and changing circumstances.
The mixed legacy of the Todd-Feld Act did hold positive outcomes for the profession. The successful passage of the Todd-Feld Act put in motion a larger movement which spread nationwide and ultimately defined the borders of the modern practice of professional nursing practice. In the years subsequent to the Todd-Feld Act’s passage other states began enacting mandatory nurse licensing laws (White, 1980). These laws shaped the practice of contemporary nursing and what nurses consider as essential for entry into the discipline. Acquiring a state nurse license to practice as a professional nurse is an unquestioned rite of passage engaged in by today’s nurse graduates; a lasting testament to the efforts of past generations of nurses.
The story of the Todd-Feld Act illustrates the ability of professional nursing to support and attain legislative victories, as well as the limitations of such victories. The realm of government regulations for any aspect of health care is an exceedingly complex and unstable process as was evidenced contemporarily during the debate surrounding the ACA, efforts to overturn it and the continued discussions on its implementation. Strong obstruction can subvert any policy. The challenge remains to construct policy strategies that stand the test of time, decrease opposition, and meet patients’ health care needs while reliably maintaining the integrity of the health system.
This work was supported by NINR T32NR07104, the American Nurses Foundation, Eleanor Lambertson RN Scholar Award, and a STTI Small Grant Award. The author wishes to thank Drs. Linda Aiken, Karen Buhler-Wilkerson, Joan Lynaugh, Patricia D’Antonio, Julie Fairman and Norma Lang for their thoughtful comments and criticisms. Versions of this paper was read at the 14 th Annual Scientific Session of the ENRS and the State of the Science Congress: Better Health through Nursing Research.
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