Can the NC Board of Nursing waive its rule requiring proof of passing the national nursing exam when a foreign-licensed nurse seeks NC licensure by endorsement from California (where she was licensed in 1966 before California required the national exam)?
Plain-English summary
Anne Harrington Mickle applied to the North Carolina Board of Nursing for licensure by endorsement. She had been licensed in California in 1966 (after moving from England), and subsequently in Oregon and Florida. She did not have proof of passing the National Council of State Boards of Nursing examination, which NC Board of Nursing rule .0218(d)(2) requires of endorsement applicants. She asked the Board to waive the rule. The Board's General Counsel asked the AG.
Chief Deputy AG Andrew A. Vanore, Jr. and Deputy AG Jane P. Gray answered: the Board has no authority to waive the rule.
The structural reasoning:
The rule is grounded in statute. N.C.G.S. § 90-171.32 specifies the requirements for endorsement (licensure without re-examination in NC). The applicant must be licensed under the laws of another state, territory of the U.S., the District of Columbia, or a foreign country, AND that jurisdiction's requirements must be substantially equivalent to or exceed NC's at the time of initial licensure, AND the Board must find the applicant competent to practice nursing in NC.
The Board's rule .0218(d)(2), requiring proof of passing the national exam, operationalizes the "substantially equivalent" prong. NC requires the national exam; an applicant whose original licensing jurisdiction did not require the same examination cannot be substantially equivalent. The rule and the statute are tied together at the hip.
The factual record disqualifies Ms. Mickle. The Board's research established that California in 1966 did not require the national exam or any other written examination. Oregon and Florida (the subsequent endorsement jurisdictions) likewise did not require the national exam. So none of Ms. Mickle's licensing jurisdictions met NC's standard. There was no way to find that any of those jurisdictions' requirements were substantially equivalent to or exceeded NC's.
No general waiver authority for statutory requirements. The AG's core legal point is sharp: when an administrative agency's rule implements a statutory standard, the agency cannot waive the rule without separate statutory waiver authority, because waiving the rule would effectively waive the underlying statute. The Board lacks waiver authority. The statute (§ 90-171.32) is mandatory in its terms; the Board's rule reflects that mandate; neither can be waived.
This is a fundamental principle of administrative law. Agencies have discretion in interpreting and applying statutes, but they do not have authority to exempt specific applicants from statutory requirements unless the legislature has expressly given them that authority. The Board can be sympathetic to Ms. Mickle's situation, but it cannot rewrite the statute through rule waiver.
Ms. Mickle's options. The opinion does not lay them out, but they are evident:
- Take the national exam. If she passes, the substantially-equivalent-requirements problem is mooted because her current licensure (with the exam) becomes the basis for endorsement.
- Become licensed in a state that does require the national exam, then apply for endorsement to NC from that state.
- Seek a legislative amendment to § 90-171.32 to create a hardship exception.
The AG's role was not to advise Ms. Mickle but to confirm the Board's lack of waiver authority. The opinion is appropriately narrow.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Nursing Practice Act has been amended multiple times since 1995. The endorsement requirements have evolved, including the Nurse Licensure Compact, which NC joined effective July 1, 2000. The Board's rules have been renumbered and revised. Any current applicant for endorsement should consult current N.C.G.S. § 90-171.32 (or its successor) and current Board of Nursing rules at 21 N.C.A.C. 36.
Background and statutory framework
State nursing licensure laws balance two competing interests: protecting public safety by ensuring nursing competence, and facilitating mobility of professional nurses across state lines. The endorsement mechanism is the mobility lever. A nurse licensed in another state with substantially-equivalent requirements gets a streamlined path to NC licensure without retaking the national exam.
The substantially-equivalent test in § 90-171.32 makes sense as a quality floor. If NC requires the national exam (which it does, as evidenced by rule .0218(d)(2)), then endorsement from a state that did not require the exam at the relevant time would undercut NC's own standard. The result would be a two-tier licensing system: nurses who took the NC route and passed the national exam, versus nurses who took the endorsement route and never passed any national exam.
Ms. Mickle's situation is sympathetic because her California licensure was in 1966, well before the national exam was the universal U.S. standard. She has presumably been practicing nursing for decades across multiple jurisdictions. The Board could rationally believe she is a competent nurse based on her career. But the statute does not authorize the Board to substitute career evidence for the substantially-equivalent test. The legislature made the policy choice that endorsement requires the exam-equivalent qualification.
The AG's holding is also a reminder of the limits of administrative discretion. Boards regularly receive sympathetic individual cases that fall outside their statutory authority. They cannot create ad hoc exceptions. The remedy for hard cases is legislative, not administrative.
The opinion is a good illustration of how AG advice protects boards from politically attractive but legally unauthorized actions. If the Board had waived the rule for Ms. Mickle, it would have set a precedent that would have been hard to limit and likely vulnerable to challenge by future applicants and by competing licensees.
Common questions
Could Ms. Mickle simply take the national exam now?
Yes. If she could pass the National Council Licensure Examination (NCLEX-RN), she would meet the substantially-equivalent standard either by re-licensing in another exam-required state or by satisfying NC's own standard. The endorsement process would then become straightforward.
Did the Nurse Licensure Compact change this analysis?
For compact states, yes. NC joined the original Nurse Licensure Compact effective 2000, and the Enhanced Nurse Licensure Compact (eNLC) in 2018. Compact members issue multi-state licenses, eliminating the endorsement process for compact-to-compact transitions. But the compact requires that all member states use the national exam. So Ms. Mickle's underlying problem (never having taken the national exam) would still bar her from any compact license.
What about reciprocity for foreign-licensed nurses?
Foreign-licensed nurses face a separate process. The Commission on Graduates of Foreign Nursing Schools (CGFNS) evaluates foreign credentials, and most states (including NC) require foreign-licensed nurses to pass the NCLEX to be licensed. Ms. Mickle's UK background plus 1966 California endorsement would not have provided a substantially-equivalent path because UK nursing credentials in 1966 did not include the NCLEX.
Could the Board waive the rule under a different rationale, like equitable estoppel or due process?
The opinion's analysis says no: the rule implements a statutory requirement that the Board cannot waive. Equitable estoppel might be available if NC had previously told Ms. Mickle she could rely on California's 1966 standard and she had taken some detrimental action in reliance. The opinion does not address that, suggesting no such claim was on the table.
Source
- Landing page: https://ncdoj.gov/opinions/anne-harington-mickle-authority-of-north-carolina-board-of-nursing-to-waive-rule/
Citations
- N.C.G.S. § 90-171.23(b)(3)
- N.C.G.S. § 90-171.32
- 21 N.C.A.C. 36 .0218(d)(2)
Original opinion text
November 6, 1995
Mr. Howard Kramer, General Counsel
North Carolina Board of Nursing
c/o P. O. Box 28720
Raleigh, North Carolina 27611
Re: Advisory Opinion; Anne Harrington Mickle; Authority of North Carolina Board of Nursing to Waive Rule .0218(d)(2).
Dear Howard:
At your request, we have reviewed the relevant statutes and rules for admission by endorsement for nurses in this state as well as the resume of Ms. Mickle. The question is whether there is any authority for the Board of Nursing to waive the provisions of their rule .0218(d)(2) requiring proof of passing the examination of the National Council of State Boards of Nursing in Ms. Mickle's case.
The authority for the rules adopted by the Board of Nursing is found in N.C.G.S. § 90-171.23(b)(3). The requirements for licensure as a registered or licensed practical nurse without examination are found in N.C.G.S. § 90-171.32. Those requirements include: (1) licensure under the laws of another state, territory of the United States, the District of Columbia, or a foreign country, (2) when that jurisdiction's requirements for licensure are substantially equivalent to or exceed those of North Carolina at the time of initial licensure, and (3) when, in the Board's opinion, the applicant is competent to practice nursing in this state. Based on the facts of this case, Ms. Mickle was licensed by endorsement by California in 1966 after moving there from England. Research by the Board shows that in 1966 California did not require passage of the national examination or any other written examination. Despite subsequent admissions by endorsement to both Oregon and Florida, there is no evidence Ms. Mickle has ever taken the national examination or that the requirements for licensure in any of those states are either substantially equivalent or exceed those of North Carolina.
Based on these facts, Ms. Mickle does not qualify for waiver of the rule requiring proof of passage of the national exam. The requirements for licensure in California were below those of North Carolina in 1966 as California did not require proof of passage of the exam. Oregon and Florida also have not required proof of passage of the exam and thus their licensing requirements are below those of North Carolina. Since the requirement is statutory, a rule based on the statute cannot be waived without separate authority. We find no such authority for the Board. Consequently, it is our opinion that the rule cannot be waived for Ms. Mickle.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Jane P. Gray
Deputy Attorney General