Title of Regulation: 18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-10, 18VAC90-25-15, 18VAC90-25-70, 18VAC90-25-71, 18VAC90-25-80 through 18VAC90-25-120; adding 18VAC90-25-16; repealing 18VAC90-25-130, 18VAC90-25-140).

Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: June 26, 2019.

Effective Date: July 15, 2019.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia. The specific statutory authority for registration of medication aides and approval of training programs is found in § 54.1-3005 of the Code of Virginia.

Purpose: It is necessary to retain the current chapter because its provisions protect the health and safety of a vulnerable population of patients or clients who receive services from a nurse aide. The regulatory changes are consistent with the principle that regulations should be clearly written and easily understandable.

Rationale for Using Fast-Track Rulemaking Process: As required by Executive Order 14 (2018), the Board of Nursing conducted a periodic review of this chapter. The amendments are either less restrictive and clarifying or intended for consistency with similar regulations for medication aides or nursing. There are no substantive changes, so the amendments are not expected to be controversial.

Substance: Pursuant to its periodic review of 18VAC90-25, the Board of Nursing has amended regulations to clarify certain provisions, make some rules less burdensome, and add requirements that are necessary for protection of the public or clients of nurse aides. Additional requirements include (i) a requirement for an applicant who does not take the state examination within two years of approval or who fails it three times to take another training program; (ii) a new subsection on reinstatement after revocation or suspension; and (iii) repeal of 18VAC90-25-130 and 18VAC90-25-140 and move of the requirements for an approved nurse aide advanced certification education program to 18VAC90-26.

Issues: There are no substantive changes to the regulation, so there are no real advantages or disadvantages to the public. The consolidation of fees into one section and the nametag changes are advantageous to a certified nursing aide (CNA) or a person seeking registration as a CNA. Most of the amendments are technical and clarifying.

There are no advantages or disadvantages to the agency or the Commonwealth, except clearer regulations may result in fewer inquiries to staff.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to a periodic review,¹ the Board of Nursing (Board) proposes to 1) require certified nurse aides (aides), who do not take the certification exam within two years of completing training or who fail it three times, repeat the training program before reapplying for certification, 2) incorporate in the regulations the option to send license renewal notices electronically, 3) allow facilities to establish their own policy for the name identification (nametags) of aides subject to certain requirements, and 4) clarify existing processes and requirements and change the location of some of the requirements.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The Board proposes to require that an aide who does not take the certification exam within two years of completing training or who fails the exam three times to repeat the training program before applying for certification. According to Department of Health Professions (DHP), it is highly unlikely that an applicant who has not taken the examination within two years of completion or who has failed three times would be able to pass the skills and written portions of the exam. Nurse aide training programs are usually offered by the community colleges. The training consists of seven credit hours and can be completed over a semester or an eight-week period. The costs include tuition ($1,085 -$1,140), trainee's time (approximately 180 hours of class time), and other costs such as background check, drug screen, immunizations, textbooks, uniform, stethoscope, etc. ($200 -$300). DHP does not have an estimate on the number of individuals who may have to repeat training. However, the proposed change would encourage the applicants to achieve certification and help ensure that they are competent to perform their tasks.

The Board also proposes to incorporate in the regulations the option of sending license renewal notices electronically as has been the current practice. Currently, licensees are providing an email address for the purpose of receiving notices and communications from the Board. As with other boards under DHP, the Board's renewal notices are currently being sent to the email address on record. If a licensee fails to renew before the renewal deadline, a paper renewal notice is also sent as a courtesy to the licensee.

According to DHP, each paper renewal notice costs $0.45 ($0.38 for postage and $0.07 for tri-fold generic stock). Currently, there are 53,055 certified nurse aides who would likely renew their licenses every two years with a cost of about $11,937 per year which has been avoided by the electronic notifications. However, the cost savings from electronic notices would likely be less than this amount because the Board may not have an email address for some of the licensees, and a paper copy would still be sent if renewal does not occur 30 days prior to the expiration of the license. In addition to the savings, electronic notices are likely beneficial because they expedite the renewal process with an almost instantaneous delivery process and also mitigate potential issues that could result from the delivery of paper notices. Since the Board already sends electronic notices, the main impact of this change is providing consistency between the current practice and the regulatory text.

Another amendment would replace the current requirement that the nametag include the aide's first and last name with a requirement that the facility employing the aide set the policy for identifying the aide on nametags. The requirement that the nametag must include the title under which the person is practicing would be retained. It should be noted that a similar change was made in the nursing regulations in response to a petition for rulemaking.²

In a survey of 320 nurses in the Commonwealth conducted by the Virginia Nurses Association, 81% preferred that that the nametag not include their full name.³ Those supporting the change cited concerns for safety and stalking as reasons to establish a more confidential method of identification. The proposal to allow flexibility to employers concerning name identification on the badge would potentially be beneficial due to the chance that some or many employers may elect to not list the full name, which may reduce the occurrences of stalking and harassment of aides.

The proposed regulations maintain the requirement that the nametag have the person's appropriate title, but does not establish a minimum criteria for name identification. An employer could potentially choose to not have the name on the badge at all. It seems likely though, that most employers would prefer to have a form of name (first name and last initial for example) on the badge so that patients or family members could correctly identify an aide.

The remaining amendments would provide clarification to existing board processes and regulatory requirements and change the location of existing requirements. These amendments would not reflect a change in current practice and would not create any significant economic impact beyond adding clarity to existing processes and expectations.

Businesses and Entities Affected. There are 53,055 certified nurse aides in the Commonwealth.

Localities Particularly Affected. The proposed amendments would not disproportionately affect particular localities.

Projected Impact on Employment. The proposed retraining requirement would likely add to the demand for nurse aide educators by a small amount. Switching from paper to electronic renewal notices may have reduced the demand for U.S. Postal Service workers by a negligible amount. However, the proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments would not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments would not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Most training programs are offered by community colleges and large health care entities. Thus, proposed amendments would not significantly affect small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments would not impose adverse impact on small businesses.

Adverse Impacts:

Businesses. The proposed amendments would not impose adverse impact on businesses.

Localities. The proposed amendments would not adversely affect localities.

Other Entities. Switching from paper to electronic renewal notices may have reduced the demand for U.S. Postal Service workers by a negligible amount. In addition, the demand for training offered by community colleges and large health care institutions may increase by a small amount.

_____________________________

¹http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1635

²http://townhall.virginia.gov/L/ViewStage.cfm?stageid=8139

³http://townhall.virginia.gov/L/viewcomments.cfm?commentid=55675

Agency's Response to Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget.

Summary:

Pursuant to a periodic review of 18VAC90-25, the amendments (i) require certified nurse aides who do not take the certification exam within two years of completing training or who fail it three times to repeat the training program before reapplying for certification, (ii) incorporate into the regulations an option to send license renewal notices electronically, (iii) allow a facility to establish its own policy for the name identification of aides subject to certain requirements, (iv) add a new subsection on reinstatement after revocation or suspension, and (v) remove the requirements for an approved nurse aide advanced certification education program from this chapter because they are being added to 18VAC90-26.

Part I
General Provisions

18VAC90-25-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Nursing.

"Client" means a person receiving the services of a certified nurse aide, to include a patient in a health care facility or at home or a resident of a long-term care facility.

"Nurse aide education program" means a program designed to prepare nurse aides for certification that is approved by the board.

18VAC90-25-15. Identification; accuracy of records.

A. Any person regulated by this chapter who provides direct patient care shall, while on duty, wear identification that is clearly visible and indicates the person's first and last name and the appropriate title issued to such person by the board under which he is practicing in that setting. Any person practicing in hospital emergency departments, psychiatric and mental health units and programs, or in health care facilities units offering treatment for patients in custody of state or local law-enforcement agencies may use identification badges of first name and first letter only of last name and appropriate title. Name identification on a badge shall follow the policy of the facility in which the nurse aide is employed.

B. A certificate holder who has changed his name shall submit as legal proof to the board a copy of the marriage certificate, a certificate of naturalization, or court order evidencing the change. A duplicate certificate shall be issued by the board upon receipt of such evidence.

C. Each certificate holder shall maintain an address of record with the board. Any change in the address of record or in the public address, if different from the address of record, shall be submitted in writing or electronically to the board within 30 days of such change. All notices required by law and by this chapter to be mailed sent by the board to any certificate holder shall be validly given when mailed sent to the latest address of record on file with the board.

18VAC90-25-16. Fees.

A. The following fees shall apply:

1. Annual renewal for certified nurse aide	$30
2. Returned check	$35
3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

Part II
Certification of Nurse Aides

18VAC90-25-70. Initial certification for the nurse aide registry.

A. The executive director of the board shall issue a certificate as a certified nurse aide to each applicant who qualifies for such a certificate under §§ 54.1-3024, 54.1-3025, 54.1-3026, and 54.1-3028 of the Code of Virginia and provisions of this chapter.

B. Nurse aide competency evaluation.

1. The board may contract with a test service for the development and administration of a competency evaluation, which shall be a state examination.

2. All individuals completing a nurse aide education program in Virginia shall successfully complete the competency evaluation state examination required by the board prior to being certified and to using the title Certified Nurse Aide.

3. The board shall determine the minimum passing standard on the competency evaluation state examination.

C. Initial certification shall be for two years.

18VAC90-25-71. Certification by examination.

A. To be placed on the registry and certified by examination, the nurse aide must:

1. Have satisfactorily completed:

a. A nurse aide education program approved by the board;

b. At least one clinical nursing course that includes at least 40 hours of clinical experience involving direct client care within the past 12 months while enrolled in a nursing education program preparing for registered nurse or practical nurse licensure; or

c. A nursing education program preparing for registered nurse licensure or practical nurse licensure;

2. Pass the competency evaluation state examination required by the board; and

3. Submit the required application and testing fee as prescribed by the board.

B. An applicant who fails to take the board-approved skills and written portions of the state examination within two years of completion of the training or who has failed the examination in three attempts shall reenroll and successfully complete another approved nurse aide training program before reapplying.

18VAC90-25-80. Renewal or reinstatement of certification.

A. Renewal of certification.

1. No less than 30 days prior to the expiration date of the current certification, a notice for renewal shall be mailed sent by the board to the address of record of each currently registered certified nurse aide.

2. The certified nurse aide shall annually submit a completed renewal application with the required fee of $30 and verification attestation of performance of nursing-related activities for compensation within the two years immediately preceding the expiration date.

3. Failure to receive the application for renewal shall not relieve the certificate holder of the responsibility for renewing the certification by the expiration date.

4. A certified nurse aide who has not performed nursing-related activities for compensation during the two years preceding the expiration date of the certification shall repeat and pass the nurse aide competency evaluation state examination prior to applying for recertification renewal of certification.

5. The board shall also charge a fee of $35 for a returned check.

B. Reinstatement of certification.

1. An individual whose certification has lapsed for more than 90 days shall submit the required application and renewal fee and provide:

a. Verification of performance of nursing-related activities for compensation in the two years prior to the expiration date of the certificate and within the preceding two years; or

b. Evidence of having repeated and passed the nurse aide competency evaluation state examination.

2. An individual who has previously had a finding of abuse, neglect, or misappropriation of property is not eligible for reinstatement of his certification, except as provided in 18VAC90-25-81, which provides a process for removal of the finding of neglect based on a single occurance.

C. A certified nurse aide whose certification has been suspended or revoked by the board and who is eligible for reinstatement may apply for reinstatement by filing a reinstatement application and fulfilling requirements of subsection B of this section.

18VAC90-25-81. Removal of a finding of neglect.

A. If a finding of neglect was made against a certificate holder based on a single occurrence, an individual may petition for removal of the finding of neglect provided:

1. A period of at least one year has passed since the finding was made; and

2. The individual seeking reinstatement demonstrates sufficient evidence that employment and personal history do not reflect a pattern of abusive behavior or neglect.

B. A certificate holder can petition the board only once for removal of a finding of neglect.

18VAC90-25-100. Disciplinary provisions for nurse aides.

The board has the authority to deny, revoke, or suspend a certificate issued, or to otherwise discipline a certificate holder upon proof that he the certificate holder has violated any of the provisions of § 54.1-3007 of the Code of Virginia. For the purpose of establishing allegations to be included in the notice of hearing, the board has adopted the following definitions:

1. Fraud or deceit in order to procure or maintain a certificate shall mean, but shall not be limited to:

a. Filing false credentials;

b. Falsely representing facts on an application for initial certification, reinstatement or renewal of a certificate; or

c. Giving or receiving assistance in taking the competency evaluation state examination.

2. Unprofessional conduct shall mean, but shall not be limited to:

a. Performing acts beyond those authorized for practice as a nurse aide or an advanced certified nurse aide as defined in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia, and beyond those authorized by the Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia) or by provisions for delegation of nursing tasks in Part X (18VAC90-20-420 VI (18VAC90-19-240 et seq.) of 18VAC90-20 18VAC90-19.

b. Assuming duties and responsibilities within the practice of a nurse aide or an advanced certified nurse aide without adequate training or when competency has not been maintained;

c. Obtaining supplies, equipment or drugs for personal or other unauthorized use;

d. Falsifying or otherwise altering client or employer records, including falsely representing facts on a job application or other employment-related documents;

e. Abusing, neglecting, or abandoning clients;

f. Having been denied a license or certificate or having had a license or certificate issued by the board revoked or suspended;

g. Giving to or accepting from a client property or money for any reason other than fee for service or a nominal token of appreciation;

h. Obtaining money or property of a client by fraud, misrepresentation, or duress;

i. Entering into a relationship with a client or the client's family that constitutes a professional boundary violation in which the nurse aide uses his professional position to take advantage of the vulnerability of a client or his family, to include but not limited to actions that result in personal gain at the expense of the client, an inappropriate personal involvement or sexual conduct with a client;

j. Violating state laws relating to the privacy of client information, including but not limited to § 32.1-127.1:03 of the Code of Virginia; or

k. Providing false information to staff or board members during the course of an investigation or proceeding.

3. For the purposes of interpreting provisions of subdivision 7 of § 54.1-3007 (7) of the Code of Virginia, a restriction on nurse aide certification shall be interpreted as having a finding of abuse, neglect, or misappropriation of patient property made in another state or being placed on the abuse registry in another state.

Part III
Advanced Certification

18VAC90-25-110. Requirements for initial certification as an advanced certified nurse aide.

A. In order to be certified as and use the title of "Advanced Certified Nurse Aide," an applicant shall meet the following qualifications:

1. Hold current certification as a certified nurse aide in Virginia;

2. Have been certified for at least three years as a certified nurse aide;

3. Have never had a finding of abuse, neglect, or misappropriation of patient property entered on a nurse aide registry in any jurisdiction and have not had any disciplinary actions taken by the board within the five years preceding application for advanced certification;

4. Have a recommendation for advanced certification from a licensed nurse who has supervised the applicant in providing direct patient care for at least six months within the past year; and

5. Have successfully completed a minimum of 120 hours of advanced training in an approved program that includes a competency evaluation acceptable to the board.

B. An application for certification shall be accompanied by an application fee of $25 as specified in 18VAC90-25-16.

18VAC90-25-120. Renewal and reinstatement of certification as an advanced certified nurse aide.

A. Current certification as a nurse aide in Virginia must be maintained in order to hold certification as an advanced certified nurse aide.

B. Renewal. If an individual is not eligible to renew as a certified nurse aide, certification as an advanced certified nurse aide may not be renewed. An advanced certification shall be renewed concurrently with the renewal of the basic certification as a nurse aide in Virginia by:

1. Submitting a completed renewal form and renewal fee of $20 as specified in 18VAC90-25-16; and

2. Attesting to completion of at least three contact hours per year of continuing education and training in any of the competency areas identified in the advanced certification training program. The board may grant an extension or waiver of the continuing education requirement based on good cause shown by the certified nurse aide.

C. Late renewal. An advanced certified nurse aide may renew certification for 90 days following the expiration date by meeting the requirements of subsection A of this section.

D. Reinstatement. If an advanced certification has not been renewed for 90 days following the expiration date, it shall only be reinstated if the applicant for reinstatement:

1. Holds current certification as a nurse aide in Virginia;

2. Submits a completed reinstatement application on a form provided by the board;

3. Pays the reinstatement fee of $30 as specified in 18VAC90-25-16; and

4. Provides evidence that he the applicant has completed all required hours of continuing education and training.

18VAC90-25-130. Requirements for an approved advanced certification education program. (Repealed.)

A. The advanced certification education program shall be approved by the Virginia Board of Nursing. An approved advanced certification education program shall also be an approved nurse aide education program as set forth in 18VAC90-25-20.

B. An advanced certification education program shall consist of a minimum of 120 hours including a minimum of 40 hours of clinical skills instruction in direct client care with on-site supervision by instructional personnel. When nurse aides are engaged in direct client care in the course of advanced certification training, the ratio shall not exceed 10 students to one instructor.

C. The instructional personnel in an approved advanced certification education program shall meet the requirements as set forth in 18VAC90-25-30.

D. The curricula of an approved advanced certification education program shall, at a minimum, meet the requirements of 18VAC90-25-140.

E. Each advanced certification program shall develop an individual record of major skills taught and the date of performance by the student. At the completion of the program, the program shall provide each nurse aide with a copy of this record and a certificate of completion.

F. An advanced certification education program shall develop and submit to the board a competency evaluation based on the curriculum content required in 18VAC90-25-140. Such an evaluation shall include both a written test on the curriculum and an assessment of manual skills. A record of the reports of graduates' performance on the approved competency evaluation program shall be maintained for a minimum of three years.

G. Program review shall be in accordance with requirements of 18VAC90-25-60 and shall be conducted concurrently with the on-site review of the basic nurse aide education program. Loss of board approval for the basic nurse aide education program shall automatically result in the loss of approval for the advanced certification education program.

H. When an advanced certification education program closes, the provider shall notify the board of the date of closing and submit a list of all graduates with their date of graduation.

18VAC90-25-140. Required curriculum content for an advanced certification education program. (Repealed.)

A. An advanced certification education program shall include classroom and clinical instruction in the following curriculum:

1. Leadership and mentoring skills.

a. Principles of adult learning;

b. Learning styles;

c. Evaluation methods to assess learner knowledge;

d. Communication techniques and communication barriers; emphasizing cultural diversity of coworkers and clients;

e. Conflict management;

f. Precepting and mentoring new certified nurse aides;

g. Teamwork;

h. Contributing to care plan development and implementation;

i. Organizational responsibilities; and

j. Principles of documentation.

2. Care of the cognitively impaired client.

a. Signs and symptoms of dementia;

b. Concepts and techniques for addressing the unique needs and behaviors of individuals with dementia, including but not limited to agitation, combativeness, sundown syndrome, wandering, forgetfulness;

c. Basic concepts of communication with cognitively impaired clients, including techniques to reduce the effects of cognitive impairment;

d. Basic concepts of behavior management with cognitively impaired clients; and

e. Recognizing changes in the client's condition and reporting and documenting such changes.

3. Restorative care.

a. Anatomy and physiology with emphasis on the effects of aging;

b. Pathophysiology of common disorders of the elderly;

c. Measures to assist clients with common medical problems;

d. Recognizing changes in the client's condition and reporting and documenting such changes;

e. Concepts to maintain or improve client mobility and ability to perform activities of daily living; and

f. Rehabilitation procedures.

4. Wound care.

a. Prevention, identification and treatment of Stage I and Stage II pressure ulcers;

b. Positioning;

c. Sterile and clean technique;

d. Dressing changes;

e. Concepts of hydration;

f. Nutrition and weight loss; and

g. Recognizing changes in the client's condition and reporting and documenting such changes.

B. Written objectives for each unit of instruction shall be stated in behavioral terms that are measurable and shall be reviewed with the students at the beginning of each unit.