Title of Regulation: 9VAC25-630. Virginia Pollution Abatement General Permit Regulation for Poultry Waste Management.

Agency Contact: Copies of the forms may be obtained from Betsy Bowles, Animal Feeding Operations Program Coordinator, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4059, or email betsy.bowles@deq.virginia.gov.

FORMS (9VAC25-630)

Registration Statement, VPA General Permit for Poultry Waste Management for Poultry Growers, RS VPG2 (rev. 12/09).

Registration Statement, VPA General Permit for Poultry Waste Management for Poultry Waste End-Users and Brokers, RS VPG2 (rev. 12/09).

Virginia DEQ Registration Statement for VPA General Permit for Poultry Waste Management for Poultry Growers, RS VPG2 (rev. 7/10).

Title of Regulation: 12VAC5-220. Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (amending 12VAC5-220-110, 12VAC5-220-200).

Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the Code of Virginia.

Effective Date: September 30, 2010.

Agency Contact: Carrie Eddy, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230, telephone (804) 367-2157, or email carrie.eddy@vdh.virginia.gov.

Summary:

The amendments increase the capital expenditure threshold for projects requiring a certificate of public need in accordance with § 32.1-102.1 of the Code of Virginia, which requires an annual revision to reflect inflation. Using the Consumer Price Index published by the U.S. Department of Labor, the capital expenditure threshold for projects requiring registration increased to $5,548,790, and those projects requiring the filing of an application increased to $16,646,371.

12VAC5-220-110. Requirements for registration of certain capital expenditures.

At least 30 days before any person contracts to make or is otherwise legally obligated to make a capital expenditure by or on behalf of a medical care facility that is $5 million $5,548,790 or more but is less than $16,083,450 $16,646,371 and has not been previously authorized by the commissioner, the owner of any medical care facility as defined in this chapter shall register in writing such expenditure with the commissioner. The format for registration shall include information concerning the purpose of such expenditure and projected impact that the expenditure will have upon the charges for services. For purposes of registration, the owner shall include any person making the affected capital expenditure. See definition of "project."

12VAC5-220-200. One hundred ninety-day review cycle.

The department shall review the following groups of completed applications in accordance with the following 190-day scheduled review cycles and the following descriptions of projects within each group, except as provided for in 12VAC5-220-220.

BATCH GROUP	GENERAL DESCRIPTION	REVIEW CYCLE
		Begins	Ends
A	General Hospitals/Obstetrical Services/Neonatal Special Care Services	Feb. 10 Aug. 10	Aug. 18 Feb. 16
B	Open Heart Surgery/Cardiac Catheterization/ Ambulatory Surgery Centers/Operating Room Additions/Transplant Services	Mar. 10 Sep. 10	Sep. 16 Mar. 19
C	Psychiatric Facilities/Substance Abuse Treatment/Mental Retardation Facilities	Apr. 10 Oct. 10	Oct. 17 Apr. 18
D/F	Diagnostic Imaging Facilities/Services Selected Therapeutic Facilities/Services	May 10 Nov. 10	Nov. 16 May 19
E	Medical Rehabilitation Beds/Services	June 10 Dec. 10	Dec. 17 Jun. 18
D/F	Selected Therapeutic Facilities/Services Diagnostic Imaging Facilities/Services	July 10 Jan. 10	Jan. 16 Jul. 18
G	Nursing Home Beds at Retirement Communities/Bed Relocations/ Miscellaneous Expenditures by Nursing Homes	Jan. 10 Mar. 10 May 10 July 10 Sep. 10 Nov. 10	Jul. 18 Sep. 16 Nov. 16 Jan. 16 Mar. 19 May 19

Batch Group A includes:

1. The establishment of a general hospital.

2. An increase in the total number of general acute care beds in an existing or authorized general hospital.

3. The relocation at the same site of 10 general hospital beds or 10% of the general hospital beds of a medical care facility, whichever is less, from one existing physical facility to another in any two-year period if such relocation involves a capital expenditure of $16,083,450 $16,646,371 or more (see 12VAC5-220-280).

4. The introduction into an existing medical care facility of any new neonatal special care or obstetrical services that the facility has not provided in the previous 12 months.

5. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category included in Batch Groups B through G, by or in behalf of a general hospital.

Batch Group B includes:

1. The establishment of a specialized center, clinic, or portion of a physician's office developed for the provision of outpatient or ambulatory surgery or cardiac catheterization services.

2. An increase in the total number of operating rooms in an existing medical care facility or establishment of operating rooms in a new facility.

3. The introduction into an existing medical care facility of any new cardiac catheterization, open heart surgery, or organ or tissue transplant services that the facility has not provided in the previous 12 months.

4. The addition by an existing medical care facility of any medical equipment for the provision of cardiac catheterization.

5. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Group A or Batch Groups C through G, by or in behalf of a specialized center, clinic, or portion of a physician's office developed for the provision of outpatient or ambulatory surgery or cardiac catheterization services.

6. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Group A or Batch Groups C through G, by or in behalf of a medical care facility, that is primarily related to the provision of surgery, cardiac catheterization, open heart surgery, or organ or tissue transplant services.

Batch Group C includes:

1. The establishment of a mental hospital, psychiatric hospital, intermediate care facility established primarily for the medical, psychiatric or psychological treatment and rehabilitation of alcoholics or drug addicts, or mental retardation facility.

2. An increase in the total number of beds in an existing or authorized mental hospital, psychiatric hospital, intermediate care facility established primarily for the medical, psychiatric or psychological treatment and rehabilitation of alcoholics or drug addicts, or mental retardation facility.

3. An increase in the total number of mental hospital, psychiatric hospital, substance abuse treatment and rehabilitation, or mental retardation beds in an existing or authorized medical care facility which is not a dedicated mental hospital, psychiatric hospital, intermediate care facility established primarily for the medical, psychiatric or psychological treatment and rehabilitation of alcoholics or drug addicts, or mental retardation facility.

4. The relocation at the same site of 10 mental hospital, psychiatric hospital, substance abuse treatment and rehabilitation, or mental retardation beds or 10% of the mental hospital, psychiatric hospital, substance abuse treatment and rehabilitation, or mental retardation beds of a medical care facility, whichever is less, from one existing physical facility to another in any two-year period if such relocation involves a capital expenditure of $16,083,450 $16,646,371 or more (see 12VAC5-220-280).

5. The introduction into an existing medical care facility of any new psychiatric or substance abuse treatment service that the facility has not provided in the previous 12 months.

6. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A and B or Batch Groups D/F through G, by or in behalf of a mental hospital, psychiatric hospital, intermediate care facility established primarily for the medical, psychiatric or psychological treatment and rehabilitation of alcoholics or drug addicts, or mental retardation facilities.

7. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A through B or Batch Groups D/F through G, by or in behalf of a medical care facility, which is primarily related to the provision of mental health, psychiatric, substance abuse treatment or rehabilitation, or mental retardation services.

Batch Group D/F includes:

1. The establishment of a specialized center, clinic, or that portion of a physician's office developed for the provision of computed tomographic (CT) scanning, magnetic resonance imaging (MRI), magnetic source imaging (MSI), positron emission tomographic (PET) scanning, or nuclear medicine imaging, except for the purpose of nuclear cardiac imaging.

2. The introduction into an existing medical care facility of any new computed tomography (CT), magnetic resonance imaging (MRI), magnetic source imaging (MSI), positron emission tomographic (PET) scanning, or nuclear medicine imaging services, except for the purpose of nuclear cardiac imaging that the facility has not provided in the previous 12 months.

3. The addition by an existing medical care facility of any equipment for the provision of computed tomography (CT), magnetic resonance imaging (MRI), magnetic source imaging (MSI), positron emission tomographic (PET) scanning.

4. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A B, C, E, and G, by or in behalf of a specialized center, clinic, or that portion of a physician's office developed for the provision of computed tomographic (CT) scanning, magnetic resonance imaging (MRI), magnetic source imaging (MSI), positron emission tomographic (PET) scanning, or nuclear medicine imaging, except that portion of a physician's office dedicated to providing nuclear cardiac imaging.

5. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A B, C, E, and G, by or in behalf of a medical care facility, which is primarily related to the provision of computed tomographic (CT) scanning, magnetic resonance imaging (MRI), magnetic source imaging (MSI), positron emission tomographic (PET) scanning, or nuclear medicine imaging, except for the purpose of nuclear cardiac imaging.

Batch Group E includes:

1. The establishment of a medical rehabilitation hospital.

2. An increase in the total number of beds in an existing or authorized medical rehabilitation hospital.

3. An increase in the total number of medical rehabilitation beds in an existing or authorized medical care facility that is not a dedicated medical rehabilitation hospital.

4. The relocation at the same site of 10 medical rehabilitation beds or 10% of the medical rehabilitation beds of a medical care facility, whichever is less, from one existing physical facility to another in any two-year period, if such relocation involves a capital expenditure of $16,083,450 $16,646,371 or more (see 12VAC220-280).

5. The introduction into an existing medical care facility of any new medical rehabilitation service that the facility has not provided in the previous 12 months.

6. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A B, C, D/F, and G, by or in behalf of a medical rehabilitation hospital.

7. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A B, C, D/F, and G, by or in behalf of a medical care facility, that is primarily related to the provision of medical rehabilitation services.

Batch Group D/F includes:

1. The establishment of a specialized center, clinic, or that portion of a physician's office developed for the provision of gamma knife surgery, lithotripsy, or radiation therapy.

2. Introduction into an existing medical care facility of any new gamma knife surgery, lithotripsy, or radiation therapy services that the facility has not provided in the previous 12 months.

3. The addition by an existing medical care facility of any medical equipment for the provision of gamma knife surgery, lithotripsy, or radiation therapy.

4. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project in Batch Groups A B, C, E, and G, by or in behalf of a specialized center, clinic, or that portion of a physician's office developed for the provision of gamma knife surgery, lithotripsy, or radiation therapy.

5. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project in Batch Groups A B, C, E, and G, by or in behalf of a medical care facility, which is primarily related to the provision of gamma knife surgery, lithotripsy, or radiation therapy.

Batch Group G includes:

1. The establishment of a nursing home, intermediate care facility, or extended care facility of a continuing care retirement community by a continuing care provider registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia.

2. The establishment of a nursing home, intermediate care facility, or extended care facility that does not involve an increase in the number of nursing home facility beds within a planning district.

3. An increase in the total number of beds in an existing or authorized nursing home, intermediate care facility, or extended care facility of a continuing care retirement community by a continuing care provider registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia.

4. An increase in the total number of beds in an existing or authorized nursing home, intermediate care facility, or extended care facility that does not involve an increase in the number of nursing home facility beds within a planning district.

5. The relocation at the same site of 10 nursing home, intermediate care facility, or extended care facility beds or 10% of the nursing home, intermediate care facility, or extended care facility beds of a medical care facility, whichever is less, from one physical facility to another in any two-year period, if such relocation involves a capital expenditure of $16,083,450 $16,646,371 or more (see 12VAC5-220-280).

6. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A through D/F, by or in behalf of a nursing home, intermediate care facility, or extended care facility, which does not increase the total number of beds of the facility.

7. Any capital expenditure of $16,083,450 $16,646,371 or more, not defined as a project category in Batch Groups A through D/F, by or in behalf of a medical care facility, that is primarily related to the provision of nursing home, intermediate care, or extended care services, and does not increase the number of beds of the facility.

Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-10, 12VAC5-371-340).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Effective Date: September 30, 2010.

Agency Contact: Carrie Eddy, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230, telephone (804) 367-2157, FAX (804) 367-2149, or email carrie.eddy@vdh.virginia.gov.

Summary:

These amendments are technical in nature to refer to applicable citations in the Code of Virginia and for consistency within the regulation as recommended by the Attorney General's Government and Regulatory Reform Task Force.

Part I
Definitions and General Information

12VAC5-371-10. Definitions.

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

"Abuse" means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish, or deprivation by an individual, including caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This includes verbal, sexual, physical or mental abuse.

"Administrator" means the individual licensed by the Virginia Board of Long-Term Care Administrators and who has the necessary authority and responsibility for management of the nursing facility.

"Admission" means the process of acceptance into a nursing facility, including orientation, rules and requirements, and assignment to appropriate staff. Admission does not include readmission to the facility after a temporary absence.

"Advance directive" means (i) a witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.1-2983 of the Code of Virginia, or (ii) a witnessed oral statement, made by the declarant subsequent to the time he is diagnosed as suffering from a terminal condition and in accordance with the provision of § 54.1-2983 of the Code of Virginia.

"Assessment" means the process of evaluating a resident for the purpose of developing a profile on which to base services. Assessment includes information gathering, both initially and on an ongoing basis, designed to assist the multi-disciplinary staff in determining the resident's need for care, and the collection and review of resident-specific data.

"Attending physician" means a physician currently licensed by the Virginia Board of Medicine and identified by the resident, or legal representative, as having the primary responsibility in determining the delivery of the resident's medical care.

"Board" means the Board of Health.

"Certified nurse aide" means the title that can only be used by individuals who have met the requirements to be certified, as defined by the Virginia Board of Nursing, and who are listed in the nurse aide registry.

"Chemical restraint" means a psychopharmacologic drug (a drug prescribed to control mood, mental status, or behavior) that is used for discipline or convenience and not required to treat medical symptoms or symptoms from mental illness or mental retardation that prohibit an individual from reaching his highest level of functioning.

"Clinical record" means the documentation of health care services, whether physical or mental, rendered by direct or indirect resident-provider interactions. An account compiled by physicians and other health care professionals of a variety of resident health information, such as assessments and care details, including testing results, medicines, and progress notes.

"Commissioner" means the State Health Commissioner.

"Complaint" means any allegation received by the Department of Health other than an incident reported by the facility staff. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal laws or regulations.

"Comprehensive plan of care" means a written action plan, based on assessment data, that identifies a resident's clinical and psychosocial needs, the interventions to meet those needs, treatment goals that are measurable and that documents the resident's progress toward meeting the stated goals.

"Construction" means the building of a new nursing facility or the expansion, remodeling, or alteration of an existing nursing facility and includes the initial and subsequent equipping of the facility.

"Department" means the Virginia Department of Health.

"Dignity" means staff, in their interactions with residents, carry out activities which assist a resident in maintaining and enhancing the resident's self-esteem and self-worth.

"Discharge" means the process by which the resident's services, delivered by the nursing facility, are terminated.

"Discharge summary" means the final written summary of the services delivered, goals achieved and post-discharge plan or final disposition at the time of discharge from the nursing facility. The discharge summary becomes a part of the clinical record.

"Drug" means (i) articles or substances recognized in the official United States "Drug" Pharmacopoeia National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement to any of them; (ii) articles or substances intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal; (iii) articles or substances, other than food, intended to affect the structure or any function of the body of man or other animal; and (iv) articles or substances intended for use as a component of any article specified in clause (i), (ii), or (iii). This does not include devices or their components, parts or accessories.

"Emergency preparedness plan" means a component of a nursing facility's safety management program designed to manage the consequences of natural disasters or other emergencies that disrupt the nursing facility's ability to provide care.

"Employee" means a person who performs a specific job function for financial remuneration on a full-time or part-time basis.

"Full-time" means a minimum of 35 hours or more worked per week in the nursing facility.

"Guardian" means a person legally invested with the authority and charged with the duty of taking care of the resident, managing his property and protecting the rights of the resident who has been declared by the circuit court to be incapacitated and incapable of administering his own affairs. The powers and duties of the guardian are defined by the court and are limited to matters within the areas where the resident in need of a guardian has been determined to be incapacitated.

"Medication" means any substance, whether prescription or over-the-counter drug, that is taken orally or injected, inserted, topically applied, or otherwise administered.

"Neglect" means a failure to provide timely and consistent services, treatment or care to a resident or residents that are necessary to obtain or maintain the resident or residents' health, safety or comfort; or a failure to provide timely and consistent goods and services necessary to avoid physical harm, mental anguish, or mental illness.

"Nursing facility" means any institution or any identifiable component of any institution, nursing home as defined in § 32.1-123 of the Code of Virginia, with permanent facilities that include inpatient beds, whose primary function is the provision, on a continuing basis, of nursing and health-related services for the treatment of individuals who may require various types of long-term care, including facilities known by varying nomenclature or designation such as convalescent homes, nursing homes, nursing or nursing care facilities, skilled nursing or skilled care facilities, intermediate care facilities or extended care facilities.

"OLC" means the Office of Licensure and Certification of the Virginia Department of Health.

"Person" means any individual, corporation, partnership, association, trust, or other legal entity, whether governmental or private, owning, managing, or operating a nursing facility.

"Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the individual cannot remove easily which restricts freedom of movement or normal access to one's own body.

"Policy" means a written statement that describes the principles and guides and governs the activities, procedures and operations of the nursing facility.

"Procedures" means a series of activities designed to implement program goals or policy, which may or may not be written, depending upon the specific requirements within this chapter. For inspection purposes, there must be evidence that procedures are actually implemented.

"Progress note" means a written statement, signed and dated by the person delivering the care, consisting of a pertinent, chronological report of the resident's care. A progress note is a component of the clinical record.

"Qualified" means meeting current legal requirements of licensure, registration or certification in Virginia; having appropriate training and experience commensurate with assigned responsibilities; or, if referring to a professional, possessing an appropriate degree or having documented equivalent education, training or experience.

"Quality assurance" means systematic activities performed to determine the extent to which clinical practice meets specified standards and values with regard to such things as appropriateness of service assignment and duration, appropriateness of facilities and resources utilized, adequacy and clinical soundness of care given. Such activities should also assure changes in practice that do not meet accepted standards. Examples of quality assurance activities include the establishment of facility-wide goals for resident care, the assessment of the procedures used to achieve the goals, and the proposal of solutions to problems in attaining those goals.

"Readmission" means a planned return to the nursing facility following a temporary absence for hospitalization, off-site visit or therapeutic leave, or a return stay or confinement following a formal discharge terminating a previous admission.

"Resident" means the primary service recipient, admitted to the nursing facility, whether that person is referred to as a client, consumer, patient, or other term.

"Responsible person or party" means an individual authorized by the resident to act for him as an official delegate or agent. The responsible person may be a guardian, payee, family member or any other individual who has arranged for the care of the resident and assumed this responsibility. The responsible person or party may or may not be related to the resident. A responsible person or party is not a guardian unless so appointed by the court.

"Supervision" means the ongoing process of monitoring the skills, competencies and performance of the individual supervised and providing regular, face-to-face guidance and instruction.

"Volunteer" means a person who, without financial remuneration, provides services to the nursing facility.

Part IV
Support Services

12VAC5-371-340. Dietary and food service program.

A. The dietary and food service operation shall meet all applicable sections of 12VAC5-421.

B. There shall be a food service protection manager, qualified as allowed in 12VAC5-421-60, responsible for the full-time management and supervision of the dietary service.

C. If the food service supervisor protection manager is not a dietitian qualified according to § 54.1-2731 of the Code of Virginia, the nursing facility shall have a written agreement for ongoing consultation from a registered dietitian who meets the qualifications of § 54.1-2731 of the Code of Virginia to provide guidance to the food service supervisor protection manager on methods for maintaining the dietary service, planning of nutritionally balanced meals, and assessing the dietary needs of individual residents.

D. The dietitian's duties shall include the following:

1. Developing all menus, including therapeutic diets prescribed by a resident's physician;

2. Developing, revising, and annually reviewing dietary policies, procedures and job descriptions;

3. Assisting in planning and conducting regularly scheduled inservice training that includes, but is not limited to:

a. Therapeutic diets;

b. Food preparation requirements; and

c. Principles of sanitation.

4. Visiting residents on a regular basis to discuss nutritional problems, depending upon their needs and level of care, and recommending appropriate solutions.

E. Menus shall meet the dietary allowances of the Food and Nutritional Board of the National Academy of Sciences, as adjusted for age, sex, and activity.

F. A copy of a diet manual containing acceptable practices and standards for nutrition must be kept current and on file in the dietary department.

G. Food service shall be staffed for not less than 12 hours during the day and evening. Duty schedules shall be retained for at least 30 days.

H. At least three meals, served at regular intervals, shall be provided daily to each resident, unless contraindicated as documented by the attending physician in the resident's clinical record.

I. A between meal snack of nutritional value shall be available upon request to each resident or in accordance with their plan of care.

J. Therapeutic diets shall be prepared and served as prescribed by the attending physician.

K. Visitors or employees assigned to other duties in the nursing facility shall not be allowed in the food preparation area during food preparation and resident meal service hours, except in cases of emergency.

L. Weekly menus, including therapeutic diets, substitutes, and copies of menus, as served, shall be retained on file for 12 months.

M. Disposable dinnerware or tableware shall be used only for emergencies, for infection control, as part of special activities, or as indicated in a resident's plan of care.

Final Regulation

Title of Regulation: 12VAC5-381. Regulations for the Licensure of Home Care Organizations (amending 12VAC5-381-170, 12VAC5-381-180, 12VAC5-381-200).

Statutory Authority: §§ 32.1-12 and 32.1-162.12 of the Code of Virginia.

Effective Date: September 30, 2010.

Agency Contact: Carrie Eddy, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230-4920, telephone (804) 367-2102, FAX (804) 367-2149, or email carrie.eddy@vdh.virginia.gov.

Summary:

Based on a recommendation of the Attorney General's Government and Regulatory Reform Task Force, the technical amendment to 12VAC5-381-170 removes the expired deadline for qualifying individuals designated by January 1, 2006, to perform the home care organization administrator's duties in his absence. The amendments to 12VAC5-381-180 and 12VAC5-381-200 reflect changes to § 32.1-162.9:1 of the Code of Virginia by Chapter 415 of the 2010 Acts of Assembly related to home care organizations developing policies for maintaining a drug-free workplace and reporting positive results of any drug test administered to the appropriate health regulatory board of the Department of Health Professions.

12VAC5-381-170. Administrator.

A. The governing body shall appoint as administrator an individual who has evidence of at least one year of training and experience in direct health care service delivery with at least one year within the last five years of supervisory or administrative management experience in home health care or a related health program.

B. The administrator shall be responsible for the day-to-day management of the organization, including but not limited to:

1. Organizing and supervising the administrative function of the organization;

2. Maintaining an ongoing liaison with the governing body, the professional personnel and staff;

3. Employing qualified personnel and ensuring adequate staff orientation, training, education and evaluation;

4. Ensuring the accuracy of public information materials and activities;

5. Implementing an effective budgeting and accounting system;

6. Maintaining compliance with applicable laws and regulations and implementing corrective action in response to reports of organization committees and regulatory agencies;

7. Arranging and negotiating services provided through contractual agreement; and

8. Implementing the policies and procedures approved by the governing body.

C. The individual designated to perform the duties of the administrator when the administrator is absent from the organization shall be able to perform the duties of the administrator as identified in subsection B of this section.

Organizations shall have one year from January 1, 2006, to ensure that individuals currently designated are qualified.

D. The administrator or his designee shall be available at all times during operating hours and for emergency situations.

12VAC5-381-180. Written policies and procedures.

A. The organization shall implement written policies and procedures approved by the governing body.

B. All policies and procedures shall be reviewed at least annually, with recommended changes submitted to the governing body for approval, as necessary.

C. Administrative and operational policies and procedures shall include, but are not limited to:

1. Administrative records;

2. Admission and discharge or termination from service criteria;

3. Informed consent;

4. Advance directives, including Durable Do Not Resuscitate Orders;

5. Client rights;

6. Contract services;

7. Medication management, if applicable;

8. Quality improvement;

9. Mandated reporting of abuse, neglect and exploitation pursuant to § 63.2-1606 of the Code of Virginia;

10. Communicable and reportable diseases;

11. Client records, including confidentiality;

12. Record retention, including termination of services;

13. Supervision and delivery of services;

14. Emergency and on-call services;

15. Infection control;

16. Handling consumer complaints;

17. Telemonitoring; and

18. Approved variances.

D. Financial policies and procedures shall include, but are not limited to:

1. Admission agreements;

2. Data collection and verification of services delivered;

3. Methods of billing for services by the organization and by contractors;

4. Client notification of changes in fees and charges;

5. Correction of billing errors and refund policy; and

6. Collection of delinquent client accounts.

E. Personnel policies and procedures shall include, but are not limited to a:

1. Written job description that specifies authority, responsibility, and qualifications for each job classification;

2. Process for maintaining an accurate, complete and current personnel record for each employee;

3. Process for verifying current professional licensing or certification and training of employees or independent contractors;

4. Process for annually evaluating employee performance and competency;

5. Process for verifying that contractors and their employees meet the personnel qualifications of the organization;

6. Process for obtaining a criminal background check and maintaining a drug-free workplace pursuant to § 32.1-162.9:1 of the Code of Virginia; and

7. Process for reporting licensed and certified medical personnel for violations of their licensing or certification to the appropriate board within the Department of Health Professions.

F. Admission and discharge or termination from service policies and procedures shall include, but are not limited to:

1. Criteria for accepting clients for services offered;

2. The process for obtaining a plan of care or service;

3. Criteria for determining discharge or termination from each service and referral to other agencies or community services; and

4. Process for notifying clients of intent to discharge/terminate or refer, including:

a. Oral and written notice and explanation of the reason for discharge/termination or referral;

b. The name, address, telephone number and contact name at the referral organization; and

c. Documentation in the client record of the referral or notice.

G. Policies shall be made available for review, upon request, to clients and their designated representatives.

H. Policies and procedures shall be readily available for staff use at all times.

12VAC5-381-200. Personnel practices.

A. Personnel management and employment practices shall comply with applicable state and federal laws and regulations.

B. The organization shall design and implement a staffing plan that reflects the types of services offered and shall provide qualified staff in sufficient numbers to meet the assessed needs of all clients.

C. Employees and contractors shall be licensed or certified as required by the Department of Health Professions.

D. The organization shall design and implement a mechanism to verify professional credentials.

E. Any person who assumes the responsibilities of any staff position or positions shall meet the minimum qualifications for that position or positions.

F. The organization shall obtain the required sworn statement and criminal record check for each compensated employee as specified in § 32.1-162.9:1 of the Code of Virginia.

G. Each employee position shall have a written job description that includes:

1. Job title;

2. Duties and responsibilities required of the position;

3. Job title of the immediate supervisor; and

4. Minimum knowledge, skills, and abilities or professional qualifications required for entry level.

H. Employees shall have access to their current position description. There shall be a mechanism for advising employees of changes to their job responsibilities.

I. New employees and contract individuals shall be oriented commensurate with their function or job-specific responsibilities. Orientation shall include:

1. Objectives and philosophy of the organization;

2. Confidentiality;

3. Client rights;

4. Mandated reporting of abuse, neglect, and exploitation;

5. Applicable personnel policies;

6. Emergency preparedness procedures;

7. Infection control practices and measures;

8. Cultural awareness; and

9. Applicable laws, regulations, and other policies and procedures that apply to specific positions, specific duties and responsibilities.

J. The organization shall develop and implement a policy for evaluating employee performance.

K. Individual staff development needs and plans shall be a part of the performance evaluation.

L. The organization shall provide opportunities for and record participation in staff development activities designed to enable staff to perform the responsibilities of their positions.

M. All individuals who enter a client's home for or on behalf of the organization shall be readily identifiable by employee nametag, uniform or other visible means.

N. The organization shall maintain an organized system to manage and protect the confidentiality of personnel files and records.

O. Employee personnel records, whether hard copy or electronic, shall include:

1. Identifying information;

2. Education and training history;

3. Employment history;

4. Results of the verification of applicable professional licenses or certificates;

5. Results of reasonable efforts to secure job-related references and reasonable verification of employment history;

6. Results of performance evaluations;

7. A record of disciplinary actions taken by the organization, if any;

8. A record of adverse action by any licensing bodies and organizations, if any;

9. A record of participation in staff development activities, including orientation; and

10. The criminal record check and sworn affidavit.

P. All positive results from drug testing shall be reported to the health regulatory boards responsible for licensing, certifying, or registering the person to practice, if any, pursuant to § 32.1-162.9:1 of the Code of Virginia.

Q. Each employee personnel record shall be retained in its entirety for a minimum of three years after termination of employment.

Q. R. Personnel record information shall be safeguarded against loss and unauthorized use.

R. S. Employee health-related information shall be maintained separately within the employee's personnel file.

Title of Regulation: 12VAC5-391. Regulations for the Licensure of Hospice (amending 12VAC5-391-10, 12VAC5-391-40).

Statutory Authority: §§ 32.1-12 and 32.1-162.5 of the Code of Virginia.

Effective Date: September 30, 2010.

Agency Contact: Carrie Eddy, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA, telephone (804) 367-5100, or email carrie.eddy@vdh.virginia.gov.

Summary:

The amendments to 12VAC5-391-10 are technical in nature and refer to applicable citations from the Code of Virginia as recommended by the Attorney General's Government and Regulatory Reform Task Force. The amendment to 12VAC5-391-40 reflects changes to § 32.1-162.2 of the Code of Virginia by Chapter 790 of the 2010 Acts of Assembly that extended licensure exemption to hospice programs accredited by national accrediting organizations recognized by the Centers for Medicare and Medicaid.

Part I
Definitions and General Information

12VAC5-391-10. Definitions.

The following words and terms when used in these regulations shall have the following meaning unless the context clearly indicates otherwise.

"Activities of daily living" means bathing, dressing, toileting, transferring, bowel control, bladder control and eating/feeding.

"Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient by (i) a practitioner or by his authorized agent and under his supervision or (ii) the patient at the direction and in the presence of the practitioner as defined in § 54.1-3401 of the Code of Virginia.

"Administrator" means a person designated, in writing, by the governing body as having the necessary authority for the day-to-day management of the hospice program. The administrator must be a member of the hospice staff. The administrator, director of nursing, or another clinical director may be the same individual if that individual is dually qualified.

"Attending physician" means a physician licensed in Virginia, according to Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1 of the Code of Virginia, or licensed in an adjacent state and identified by the patient as having the primary responsibility in determining the delivery of the patient's medical care. The responsibilities of physicians contained in this chapter may be implemented by nurse practitioners or physician assistants as assigned by the supervising physician and within the parameters of professional licensing.

"Available at all times during operating hours" means an individual is available on the premises or by telecommunications.

"Barrier crimes" means certain offenses specified in § 32.1-162.9:1 of the Code of Virginia that automatically bar an individual convicted of those offenses from employment with a hospice program.

"Bereavement service" means counseling and support offered to the patient's family after the patient's death.

"Commissioner" means the State Health Commissioner.

"Coordinated program" means a continuum of palliative and supportive care provided to a terminally ill patient and his family, 24 hours a day, seven days a week.

"Core services" means those services that must be provided by a hospice program. Such services are: (i) nursing services, (ii) physician services, (iii) counseling services, and (iv) medical social services.

"Counseling services" means the provision of bereavement services, dietary services, spiritual and any other counseling services for the patient and family while the person is enrolled in the program.

"Criminal record report" means the statement issued by the Central Criminal Records Exchange, Virginia Department of State Police.

"Dedicated hospice facility" means an institution, place, or building providing room, board, and appropriate patient care 24 hours a day, seven days a week to individuals diagnosed with a terminal illness requiring such care pursuant to a physician's orders.

"Dispense" means to deliver a drug to the ultimate user by or pursuant to the lawful order of a practitioner, including the prescribing and administering, packaging, labeling or compounding necessary to prepare the substance for that delivery as defined in § 54.1-3401 of the Code of Virginia.

"Employee" means an individual who is appropriately trained and performs a specific job function for the hospice program on a full or part-time basis with or without financial compensation.

"Governing body" means the individual, group or governmental agency that has legal responsibility and authority over the operation of the hospice program.

"Home attendant" means a nonlicensed individual performing personal care and environmental services, under the supervision of the appropriate health professional, to a patient in the patient's residence. Home attendants are also known as certified nursing assistants or CNAs, home care aides, home health aides, and personal care aides.

"Hospice" means a coordinated program of home and inpatient care provided directly or through an agreement under the direction of an identifiable hospice administration providing palliative and supportive medical and other health services to terminally ill patients and their families. A hospice utilizes a medically directed interdisciplinary team. A hospice program of care provides care to meet the physical, psychological, social, spiritual and other special needs that are experienced during the final stages of illness, and during dying and bereavement. Hospice care shall be available 24 hours a day, seven days a week hospice as defined in § 32.1-162.1 of the Code of Virginia.

"Inpatient" means services provided to a hospice patient who is admitted to a hospital or nursing facility on a short-term basis for the purpose of curative care unrelated to the diagnosed terminal illness. Inpatient does not mean services provided in a dedicated hospice facility.

"Interdisciplinary group" means the group responsible for assessing the health care and special needs of the patient and the patient's family. Providers of special services, such as mental health, pharmacy, and any other appropriate associated health services may also be included on the team as the needs of the patient dictate. The interdisciplinary group is often referred to as the IDG.

"Licensee" means a licensed hospice program provider.

"Medical director" means a physician currently licensed in Virginia, according to Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1 of the Code of Virginia, and responsible for the medical direction of the hospice program.

"Medical record" means a continuous and accurate documented account of services provided to a patient, including the prescription and delivery of the treatment or care.

"Nursing services" means the patient care performed or supervised by a registered nurse according to a plan of care.

"OLC" means the Office of Licensure and Certification of the Virginia Department of Health.

"Operator" means any individual, partnership, association, trust, corporation, municipality, county, local government agency or any other legal or commercial entity responsible for the day-to-day administrative management and operation of the hospice.

"Palliative care" means treatment directed at controlling pain, relieving other symptoms, and focusing on the special needs of the patient and family as they experience the stress of the dying process. Palliative care means treatment to enhance comfort and improve the quality of a patient's life during the last phase of his life.

"Patient" means a diagnosed terminally ill individual, with an anticipated life expectancy of six months or less, who, alone or in conjunction with designated family members or representatives, has voluntarily requested admission and been accepted into a licensed hospice program hospice patient as defined in § 32.1-162.1 of the Code of Virginia.

"Patient's family" means the hospice patient's immediate kin, including spouse, brother, sister, child or parent. Other relations and individuals with significant personal ties to the hospice patient may be designated as members of the patient's family by mutual agreement among the patient, the relation or individual a hospice patient's family as defined in § 32.1-162.1 of the Code of Virginia.

"Patient's residence" means the place where the individual or patient makes his home.

"Person" means any individual, partnership, association, trust, corporation, municipality, county, local government agency or any other legal or commercial entity that operates a hospice.

"Plan of care" means a written plan of services developed by the interdisciplinary group to maximize patient comfort by symptom control to meet the physical, psychosocial, spiritual and other special needs that are experienced during the final stages of illness, during dying, and bereavement.

"Primary caregiver" means an individual that, through mutual agreement with the patient and the hospice program, assumes responsibility for the patient's care.

"Progress note" means a documented statement contained in a patient's medical record, dated and signed by the person delivering the care, treatment or service, describing the treatment or services delivered and the effect of the care, treatment or services on the patient.

"Quality improvement" means ongoing activities designed to objectively and systematically evaluate the quality of care and services, pursue opportunities to improve care and services, and resolve identified problems. Quality improvement is an approach to the ongoing study and improvement of the processes of providing services to meet the needs of patients and their families.

"Staff" means an employee who receives financial compensation.

"Supervision" means the ongoing process of monitoring the skills, competencies and performance of the individual supervised and providing regular face-to-face guidance and instruction.

"Terminally ill" means a medical prognosis that life expectancy is six months or less if the illness runs its usual course.

"Volunteer" means an employee who receives no financial compensation.

12VAC5-391-40. Exemption from licensure.

A. According to § 32.1-162.2 of the Code of Virginia, this chapter is not applicable to a hospice established or operated for the practice of religious tenets of any recognized church or denomination that provides care and treatment for the sick by spiritual means without the use of any drug or material remedy, whether gratuitously or for compensation. Such a hospice shall comply with the statutes and regulations governing environmental protection and life safety. This chapter is not applicable to hospice programs described in § 32.1-162.2 of the Code of Virginia.

B. The hospice program must file a request for exemption from licensure in writing to the director of the OLC. The request shall contain documentation explaining the hospice program's relationship to the practice of religious tenets of a recognized church or denomination.

C. The hospice program shall be notified in writing that the exemption from licensure has been registered.

D. Exempt hospice programs shall remain subject to complaint investigations in keeping with state law.

Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-152).

Statutory Authority: §§ 54.1-2400 and 54.1-2816.1 of the Code of Virginia.

Effective Date: September 29, 2010.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4424, FAX (804) 527-4637, or email lisa.hahn@dhp.virginia.gov.

Summary:

The regulation is amended to conform to § 54.1-2816.1 of the Code of Virginia, which specifies that continuing education providers must maintain certificates issued to licensees for a period of two years following each course offered. 18VAC65-20-152 requires continuing education providers to retain documentation for three years; therefore, the regulation is amended to require document retention for two years.

18VAC65-20-152. Continuing education providers.

A. Unless disqualified by action of the board, courses offered by the following providers are approved for continuing education credit:

1. Local, state or federal government agencies;

2. Regionally accredited colleges and universities; or

3. Board-recognized national, regional, state and local associations or organizations as follows:

a. National Funeral Directors Association and state chapters;

b. National Funeral Directors and Morticians Association and state chapters;

c. Association of Independent Funeral Homes of Virginia;

d. Cremation Association of North America;

e. American Board of Funeral Service Education;

f. International Conference of Funeral Service Examining Boards;

g. Virginia Morticians Association; and

h. Other similar associations or organizations as approved by action of the board.

B. Course providers not listed in subsection A of this section may apply for approval by the board as continuing education providers.

1. To be considered for board approval, a continuing education provider shall submit 60 days prior to offering a continuing education course:

a. Documentation of an instructional plan and course objectives for continuing education courses that meet the criteria set forth in 18VAC65-20-151 B;

b. A syllabus of the course or courses to be offered with the credentials of the course instructors, a description of each session, including number of continuing education hours; and

c. The continuing education provider fee set forth under 18VAC65-20-70.

2. Board approval of continuing education providers under this subsection shall expire on July 1 of each year and may be renewed upon resubmission of documentation on courses and instructors and the provider fee as required by the board.

3. Continued approval of a continuing education provider may be granted without submission of the provider fee if the provider submits a statement that courses and instructors offered for the coming year will not change from the previous year. If there will be additions or alterations to the continuing education offerings of a provider, resubmission of documentation and a provider fee is required.

C. Continuing education providers approved under subsection A or B of this section shall:

1. Maintain and provide to the board upon request documentation of the course titles and objectives and of licensee attendance and completion of courses for a period of three two years;

2. Monitor attendance at classroom or similar educational experiences for compliance with law and regulations; and

3. Provide a certificate of completion for licensees who successfully complete a course.

Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-500).

Statutory Authority: §§ 54.1-2400 and 54.1-2803 of the Code of Virginia.

Effective Date: September 29, 2010.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4424, FAX (804) 527-4637, or email lisa.hahn@dhp.virginia.gov.

Summary:

The regulation is amended to conform the unprofessional conduct provisions relating to the inappropriate handling and storage of dead human bodies to § 54.1-2811.1 of the Code of Virginia as enacted by Chapter 823 of the 2010 Acts of Assembly.

Part VI
Refusal, Suspension, Revocation, and Disciplinary Action

18VAC65-20-500. Disciplinary action.

In accordance with the provisions of § 54.1-2806 of the Code of Virginia, the following practices are considered unprofessional conduct and may subject the licensee to disciplinary action by the board:

1. Breach of confidence. The unnecessary or unwarranted disclosure of confidences by the funeral licensee.

2. Unfair competition.

a. Interference by a funeral service licensee, funeral director, or registered surface transportation and removal service when another has been called to take charge of a dead human body and the caller or agent of the caller has the legal right to the body's disposition.

b. Consent by a funeral service licensee or funeral director to take charge of a body unless authorized by the person or his agent having the legal right to disposition.

3. False advertising.

a. No licensee or registrant shall make, publish, disseminate, circulate or place before the public, or cause directly or indirectly to be made, an advertisement of any sort regarding services or anything so offered to the public which contains any promise, assertion, representation, or statement of fact which is untrue, deceptive, or misleading.

b. The following practices, both written and verbal, shall constitute false, deceptive, or misleading advertisement within the meaning of subdivision 4 of § 54.1-2806 of the Code of Virginia:

(1) Advertising containing inaccurate statements; and

(2) Advertisement which gives a false impression as to ability, care, and cost of conducting a funeral, or that creates an impression of things not likely to be true.

c. The following practices are among those which shall constitute an untrue, deceptive, and misleading representation or statement of fact:

(1) Representing that funeral goods or services will delay the natural decomposition of human remains for a long term or indefinite time; and

(2) Representing that funeral goods have protective features or will protect the body from gravesite substances over or beyond that offered by the written warranty of the manufacturer.

4. Inappropriate handling and storage of dead human bodies, consistent with § 54.1-2811.1 of the Code of Virginia and regulations of the board. Transportation and removal vehicles shall be of such nature as to eliminate exposure of the deceased to the public during transportation. During the transporting of a human body, consideration shall be taken to avoid unnecessary delays or stops during travel.

5. Failure to furnish price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies.

6. Conducting the practice of funeral services in such a manner as to constitute a danger to the health, safety, and well-being of the staff or the public.

7. Inability to practice with skill or safety because of physical, mental, or emotional illness, or substance abuse.

8. Failure to register as a supervisor for a funeral service intern or failure to provide reports to the board as required by the Code of Virginia and 18VAC65-40-320.

9. Failure to comply with applicable federal and state laws and regulations, including requirements for continuing education.

Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (repealing 18VAC65-20-530).

Statutory Authority: § 54.1-2400 and Chapter 28 (§ 54.1-2800) of Title 54.1 of the Code of Virginia.

Effective Date: September 29, 2010.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4424, FAX (804) 527-4637, or email lisa.hahn@dhp.virginia.gov.

Summary:

Section 54.1-2811.1 of the Code of Virginia, added by the 2010 General Assembly, specifies in subsection B that a dead human body shall be maintained in refrigeration and shall not be embalmed in the absence of express permission by a next of kin of the deceased or a court order. Therefore, the regulation authorizing a funeral establishment to proceed with embalming absent express permission is in direct conflict with changes in the law and is repealed.

18VAC65-20-530. Documentation of embalming. (Repealed.)

A licensee who proceeds with an embalming without prior approval from a family member or other person shall document in writing the reasons for the proceeding, the efforts made to contact the family or authorized person and the licensee authorizing the embalming. Subsequently, approval for the embalming shall be obtained from a family member or other authorized person.

Titles of Regulations: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-30, 18VAC90-20-40, 18VAC90-20-60, 18VAC90-20-151, 18VAC90-20-160).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-80).

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-50).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-70).

18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information:

September 14, 2010 - 11 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Avenue, Suite 201, Richmond, VA

Public Comment Deadline: November 12, 2010.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the board the authority to promulgate regulations to administer the regulatory system and to levy fees. The specific regulatory mandate for an increase in fees is found in § 54.1-113 of the Code of Virginia.

Purpose: The issue to be addressed is the need of the Board of Nursing to increase its fees to cover expenses for essential functions of licensure, investigation of complaints, and adjudication of disciplinary cases to ensure minimal competency for persons licensed, certified, or registered by the board. The board also reviewed and considered expenditures relating to initial or continued approval of nursing education programs.

The scope of the board's regulatory responsibility includes the following 12 occupations or entities with approximately 182,000 licensees, certificate holders, and registrants:

Registered nurses

Licensed practical nurses

Licensed nurse practitioners

Authorization to prescribe

Clinical nurse specialists

Certified nurse aides

Advanced nurse aides

Medication aides

Certified massage therapists

Virginia professional schools of nursing

Virginia practical schools of nursing

Volunteer registration

Section 54.1-113 of the Code of Virginia requires that at the end of each biennium, an analysis of revenues and expenditures of each regulatory board shall be performed. It is necessary that each board have sufficient revenue to cover its expenditures. By the close of FY10, it is projected that the Board of Nursing (in the combined budgets of Nursing and Certified Nurse Aides) will have $10,879,889 in expenses and only $8,359,143 in revenue. With a modest surplus carried forward from previous years, the board is expected to end the fiscal year with a deficit of $687,532 by June 30, 2010, and will continue to build increasing deficits through the fiscal years going forward. Since the fees from regulants will no longer generate sufficient funds to pay operating expenses for the board, promulgation of regulations for a fee increase is essential. To begin to reduce the deficits and have sufficient funding for the operation of the board by calendar year 2011, amendments to regulations must be adopted at the earliest possible date.

Fee increases for licensees regulated by the Board of Nursing are necessary in order for the board and the Department of Health Professions to continue performing essential functions of licensing, certifying, or registering new practitioners, and protecting the public from continued practice by incompetent or unethical practitioners. Since the Board of Nursing is the only health regulatory board with a statutory responsibility for approval of education programs, it must also have additional revenue to support functions related to assuring that new and existing nursing education programs meet minimal standards.

Substance: The Board of Nursing is proposing amendments to increase fees charged to regulants and applicants and to establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees would be increased as follows: (i) registered nurses, $45; (ii) licensed practical nurses, $25; (iii) licensed nurse practitioners, $30; (iv) certified massage therapists, $25; and (v) clinical nurse specialists, $20.

For initial approval of a nursing education program, there is an increase of $450 in the application fee. Fees for survey visits to nursing education programs ($2,200) and site visits for failure to achieve 80% NCLEX passage rates ($1,500) would be added in amounts sufficient to offset the board's expenses for such visits.

For certified nurse aides, the board proposes to change the renewal cycle from biennial (current fee of $50) to annual (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions, are increased proportionally.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $687,532 at the end of FY10 and projected to increase to almost $13.5 million in FY14, there could be significant delays in (i) licensing new nurses, CNA's, medication aides, and nurse practitioners, and (ii) the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in biennial renewal fees ranging from $25 to $45 for nurses and in annual renewal fees for CNA's and medication aides should not significantly impact the cost of nursing care for Virginians.

There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to increase most fees paid by licensees, registrants, and certificate holders that are subject to the Board's authority and to establish new fees to cover the cost of continued approval of nursing education programs.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. Under current regulations, registered nurses (RNs) and licensed practical nurses (LPN) pay the same licensure fees. Currently, schools that are planning on starting a nursing education program, and are applying for Board approval, must currently submit, at least 12 months in advance of the expected opening, a statement of intent and $1,200 application fee.

With these proposed regulations, the Board intends to separate most licensure fees paid by RNs from those paid by LPNs (all fees except the fee for reinstatement of a suspended or revoked license), raise the application fee for approval of nursing programs and establish new fees for survey visits for nursing program that are being newly approved and site visits for nursing programs whose NCLEX (National Council Licensure Examination) passage rates fall below 80%. Board staff reports that these new fees are needed to cover the costs associated with required staff on-site visits. The Board also proposes to raise all fees set in chapter 18 VAC 90-20 except the fee on returned checks. Below is a comparison table for current and proposed fees:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure by Examination RN	$130	$190	46.15%
Application for Licensure by Endorsement RN	$130	$190	46.15%
Application for Licensure by Examination LPN	$130	$170	30.77%
Application for Licensure by Endorsement LPN	$130	$170	30.77%
Reapplication for Licensure by Examination	$25	$50	100%
Biennial License Renewal RN	$95	$140	47.36%
Biennial Inactive License Renewal RN	$50	$70	40%
Biennial License Renewal LPN	$95	$120	26.32%
Biennial Inactive License Renewal LPN	$50	$60	20%
Late Renewal RN	$35	$50	42.86%
Late Renewal LPN	$35	$40	14.29%
Reinstatement of Lapsed License RN	$145	$225	55.17%
Reinstatement of Lapsed License LPN	$145	$200	37.93%
Reinstatement of a Suspended or Revoked License	$185	$300	62.16%
Duplicate License	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of License	$25	$35	40%
Transcript of All or Part of Applicant/ Licensee Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged
Application of Clinical Nurse Specialist (CNS) Registration	$95	$130	36.84%
Biennial Renewal of CNS Registration	$60	$80	33.33%
Reinstatement of Lapsed CNS Registration	$105	$125	19.05%
Verification of CNS Registration to Another Jurisdiction	$25	$35	40%
Late Renewal of CNS Registration	$20	$35	75%
Application for Approval of a Nursing Education Program	$1,200	$1,650	37.5%
Survey Visit For Nursing Education Program	N/A	$2,200	New Fee
Site Visit for NCLEX Passage Rate for Nursing Education Program	N/A	$1,500	New Fee

The Board also proposes to require certified nurse aides to renew their certification annually, rather than biennially, and proposes to change the renewal fee from $50 every two years to $30 every year. This change will affectively raise the cost of renewal by $10 (20%) every two years. Additionally, the Board proposes to raise fees in 18 VAC 90-30 (covering nurse practitioners), 18 VAC 90-40 (covering prescriptive authority for nurse practitioners), 18 VAC 90-50 (covering certified massage therapists) and 18 VAC 90-60 (medication aides).

Below is a comparison table of current and proposed fees for nurse practitioners:

FEE TYPE		CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure	$85		$125	47.06%
Biennial Licensure Renewal	$50		$80	60%
Late Renewal	$20		$25	30.77%
Reinstatement of Licensure	$85		$150	76.47%
Reinstatement of Suspended or Revoked License	$85		$200	135%
Verification of Licensure to Another Jurisdiction	$25		$35	40%
Duplicate License	$5		$15	200%
Duplicate Wall Certificate	$15		$25	66.67%
Returned Check Charge	$35		$35	unchanged

A comparison table of current and proposed fees for prescriptive authority:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Issuance of Prescriptive Authority	$50	$75	50%
Biennial Renewal	$25	$35	40%
Late Renewal	$25	$30	20%
Reinstatement of Lapsed Authorization	$60	$90	50%
Reinstatement of Revoked or Suspended Authorization	$85	$85	unchanged
Duplicate of Authorization	$5	$15	200%
Returned Check Charge	$35	$35	unchanged

And a comparison table of current and proposed fees for massage therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application and Initial Certification	$105	$140	33.33%
Biennial Renewal	$70	$95	35.71%
Late Renewal	$25	$30	20%
Reinstatement of Certification	$120	$150	25%
Reinstatement after Revocation or Suspension	$150	$200	33.33%
Duplicate Certificate	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of Certification	$25	$35	40%
Transcript of All or Part of Applicant/ Certificate Holder Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged

The Board proposes to increase the annual renewal fee (from $25 to $30) and the duplicate registration fee (from $5 to $15) for medication aides.

Board staff reports that the Board expects to run a deficit of $687,532 for FY2010 and that, absent approval of these fee increases, there will be deficit spending through the fiscal years going forward. Board staff further reports that these fee increases are needed to cover 1) the costs associated with the increased number of disciplinary actions, particularly involving certified nurse aides, 2) the costs associated with on-site inspections of nursing education programs for which the Board is currently not reimbursed and 3) increasing costs for information technology (IT) services.

Board staff reports that investigation of voluminous complaints against certified nurse aides has increased the Boards disciplinary costs. The Board feels, however that trying to only adjust certified nurse aide fees to pay for these increased costs would have a significant and chilling effect on individuals decisions to work in this field. The Board, instead, proposes to increase all nursing fees incrementally to cover these costs. As an alternative to the portion of fee increases that will be used to cover increased disciplinary costs, the Board may wish to consider measures that have costs falling to certified nurse aides or their employers. The Board might, for instance, look in to requiring employers of certified nurse aides to carry surety bonds that would make them responsible for poor behavior on the part of their employees. Such an action would likely require the cooperation of other regulatory bodies in the Commonwealth that set requirements for facilities that hire certified nurse aides.

The Department of Health Professions (DHP) reports that a portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have almost doubled over the last two years, and are expected to increase approximately $500,000 this year. For comparison, DHPs VITA expenditures for FY 2005 were, in total, $476,600. For FY 2010, the agency has budgeted $1,587,788 for VITA costs.. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHPs licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). The Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP boards) would benefit from increased scrutiny of services provided to DHP through VITA.

The Board does not believe that these fee increases are large enough to affect either regulated entities choice to be employed in their current fields or the cost of nursing care in Virginia. One would expect to see, however, some marginal decrease in the number of individuals choosing to be licensed, certified or registered as the cost of licensure, certification and registration increases even if those increases are moderate. Particularly, individuals who are making little to no extra money at the tasks licensed, certified, and registered by the Board, when compared to their next best option for employment, will likely choose their next best option if their costs for doing their current jobs increase. To the (likely minimal) extent that individuals who are currently licensed or registered find that these proposed fee increases cause them to leave their current professions, total employment for this group in these professions may decrease by some small amount.

Businesses and Entities Affected. DHP reports that the Board currently regulates 91,316 registered nurses, 29,828 licensed practical nurses, 5,887 licensed nurse practitioners (3,456 of whom are authorized to prescribe medication), 5,335 certified massage therapists, 436 clinical nurse specialists, 3,577 medication aides, 46,281 certified nurse aides, 99 advanced certified nurse aides, 68 professional schools of nursing and 80 practical schools of nursing. All of these entities, as well as any individuals or entities who may wish to become licensed, certified or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action may decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. To the extent that the proposed fee increases for nursing schools increase costs for affected proprietary nursing schools, profits will likely decrease. If this happens, the value of these businesses will marginally decrease. Proposed fee increases that would affect only new nursing schools may slightly decrease the chance of new programs starting in the future.

Small Businesses: Costs and Other Effects. DHP reports that there are 13 proprietary RN programs and 23 proprietary LPN programs in the Commonwealth; all of these are likely small businesses. Existing nursing program small businesses in the Commonwealth will incur costs for increased fees only if the NCLEX passage rates of their graduates fall below 80%.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall (including fees that fall on proprietary nursing schools). The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis:

The Board of Nursing does not concur with the analysis of the Department of Planning and Budget for the proposed amendments to Regulations of the Board of Nursing, to increase fees for the following reasons:

1) The Board does not agree that sharply higher fees for certified nurse aides might have an ameliorative effect on the poor behavior of this group.

• There is absolutely no historic evidence for any health regulatory board to support the assertion that a sharp increase in fees would cause the professionals to police themselves and the behavior of their cohorts. On July 14, 2004, there was a 36% increase in the renewal fees for registered nurses. For the fiscal year ending June 30, 2005, number of complaints per 1,000 licensees for registered nurses was 5.21; for the fiscal year ending June 30, 2006, the number per 1,000 was 5.64.

• While there are a large number of complaints filed and disciplinary proceedings held for certified nurse aides, the rate of complaints is far less than many other professions. During the 2007-08 fiscal year, the complaint rate for certified nurse aides was 9.95 per 1,000; for licensed practical nurses, the rate was 13.15 and for nurse practitioners, the rate was 13.25. There are a large number of cases because there are a large number of certified nurse aides (typically 42,000 to 43,000).

• The problem is that the Board of Nursing is not permitted by federal law to charge a fee to place a person on the Nurse Aide Registry (charge an application fee), and the profession is not highly compensated so its renewal fees alone cannot support the disciplinary and administrative costs of operation. Other similar professions, such as pharmacy technicians, do not support the activities associated with investigating and disciplining the profession with their renewal fees alone.

2) The Board has no authority to consider measures that would pass on the costs for the nurse aide registry to the employers, as is suggested in the EIA. Further, the purchase of a surety bond, as recommended in the EIA, could not accrue to the budget of the Board. A surety bond protects against financial losses to the facility or institution making such a purchase; it would not make them responsible for poor behavior on the part of their employees.

3) In order to make fees for certified nurse aides sufficient to cover expenditures related to that portion of the budget, the current fee of $50 per biennium would need to be increased to approximately $170, just to offset the accumulated shortfall. That action would likely deplete the workforce that primarily provides care in all long-term care facilities and many other patient settings.

4) The EIA notes that one would expect to see some marginal decrease in the number of individuals choosing to be licensed, certified or registered affecting total employment in these professions. In 2003 and 2004, there was a substantial increase in fees for nurses; yet the number of licensed nurses increased from 122,653 in FY03 to 126,454 in FY04 and 127,858 in FY05. Clearly, there are factors other than a biennial renewal fee that determine licensure and employment in a health care profession such as nursing.

Summary:

The proposed amendments would increase fees charged to regulants and applicants and establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees for registered nurses would be increased by $45 and for licensed practical nurses by $25. For initial approval of a nursing education program, there would be an increase in the application fee of $450. Fees for survey visits and site visits to nursing education programs would be added in amounts sufficient to offset the board's expenses for such visits.

Similar increases are proposed for clinical nurse specialists, licensed nurse practitioners, and certified massage therapists. For certified nurse aides, the board proposes to change the renewal cycle from a biennial cycle (current fee of $50) to an annual cycle (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions would be increased proportionally.

18VAC90-20-30. Fees.

Fees required by the board are:

1. Application for licensure by examination - RN	$130 $190
2. Application for licensure by endorsement - RN	$130 $190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
3. 5. Reapplication for licensure by examination	$25 $50
4. 6. Biennial licensure renewal - RN	$95 $140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
5. 10. Late renewal - RN	$35 $50
11. Late renewal - LPN	$40
6. 12. Reinstatement of lapsed license - RN	$145 $225
13. Reinstatement of lapsed license - LPN	$200
7. 14. Reinstatement of suspended or revoked license	$185 $300
8. 15. Duplicate license	$5 $15
9. 16. Replacement wall certificate	$15 $25
10. 17. Verification of license	$25 $35
11. 18. Transcript of all or part of applicant/licensee records	$25 $35
12. 19. Returned check charge	$35
13. 20. Application for CNS registration	$95 $130
14. 21. Biennial renewal of CNS registration	$60 $80
15. 22. Reinstatement of lapsed CNS registration	$105 $125
16. 23. Verification of CNS registration to another jurisdiction	$25 $35
17. 24. Late renewal of CNS registration	$20 $35
18. Inactive licensure renewal	$50
19. Late renewal of an inactive license	$15
25. Application for approval of a nursing education program	$1,650
26. Survey visit for nursing education program	$2,200
27. Site visit for NCLEX passage rate for nursing education program	$1,500

Part II
Nursing Education Programs

Article 1
Establishing a Nursing Education Program

18VAC90-20-40. Application.

A. An institution wishing to establish a nursing education program shall:

1. Submit to the board, at least 12 months in advance of expected opening date, a statement of intent to establish a nursing education program along with an application fee of $1,200 as prescribed in 18VAC90-20-30.

2. Submit to the board evidence documenting adequate resources for the projected number of students and the ability to provide a program that can meet the requirements of Article 2 (18VAC90-20-70 et seq.) of this part to include the following information:

a. Organizational structure of the institution and relationship of nursing program therein;

b. Purpose and type of program;

c. Availability of qualified faculty sufficient to provide classroom instruction and clinical supervision for the number of students specified by the program;

d. Budgeted faculty positions sufficient in number to provide classroom instruction and clinical supervision;

e. Availability of clinical training facilities for the program as evidenced by copies of contracts or letters of agreement specifying the responsibilities of the respective parties and indicating sufficient availability of clinical experiences for the number of students in the program;

f. Availability of academic facilities for the program, including classrooms, laboratory, and library;

g. Evidence of financial resources for the planning, implementation and continuation of the program with budget projections for three years;

h. Tentative time schedule for planning and initiating the program; and

i. An enrollment plan specifying the beginning dates and number of students for each class for a two-year period from the date of initial approval.

3. Respond to the board's request for additional information.

B. A site visit may be conducted by a representative of the board.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review applications and the report of the site visit and shall make recommendations to the board regarding the granting or denial of approval of the program application.

1. If the board accepts the recommendation to approve the program application, the institution may apply for provisional approval of the nursing education program as set forth in this chapter.

2. If the committee recommendation is to deny approval of the program application, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia.

18VAC90-20-60. Program approval.

A. The application for approval shall be complete when:

1. A self-evaluation report of compliance with Article 2 (18VAC90-20-70 et seq.) of this part has been submitted along with the fee for a survey visit as required by 18VAC90-20-30;

2. The first graduating class has taken the licensure examination, and the cumulative passing rate for the program's first-time test takers taking the NCLEX over the first four quarters following graduation of the first class is not less than 80%; and

3. A satisfactory survey visit and report has been made by a representative of the board verifying that the program is in compliance with all requirements for program approval.

B. The committee shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation, the NCLEX results and survey reports and shall make a recommendation to the board for the granting or denial of approval or for continuance of provisional approval.

C. If the committee's recommendation is to deny approval, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 of the Code of Virginia.

18VAC90-20-151. Passage rate on national examination.

A. For the purpose of continued approval by the board, a nursing education program shall maintain a passage rate for first-time test takers on the NCLEX that is not less than 80%, calculated on the cumulative results of the past four quarters in each year.

B. If a program falls below 80% for two consecutive years, the board shall conduct a site visit and place the program on conditional approval. Prior to the conduct of such a visit, the program shall submit the fee for a site visit pursuant to the NCLEX passage rate as required by 18VAC90-20-30. If a program falls below 80% for three consecutive years, the board may withdraw program approval.

C. For the purpose of program evaluation, the board may provide to the program the examination results of its graduates. However, further release of such information by the program shall not be authorized without written authorization from the candidate.

Article 3
Maintaining or Closing an Approved Nursing Education Program

18VAC90-20-160. Maintaining an approved nursing education program.

A. The program director of each nursing education program shall submit an annual report to the board.

B. Each nursing education program shall be reevaluated as follows:

1. A program that has not achieved accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every eight years for a practical nursing program and every six years for a registered nursing program by submission of a comprehensive self-evaluation report based on Article 2 (18VAC90-20-70 et seq.) of this part, and a survey visit by a representative(s) of the board on dates mutually acceptable to the institution and the board.

2. A program that has maintained accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the board. As evidence of compliance with specific requirements of this chapter, the board may accept the most recent study report, site visit report and final decision letter from the accrediting body. The board may require additional information or a site visit to ensure compliance with requirements of this chapter. If accreditation has been withdrawn or a program has been placed on probation, the board shall conduct an on-site survey visit within one year of such action. If a program fails to submit the documentation required in this subdivision, the requirements of subdivision 1 of this subsection shall apply.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation and survey reports and shall make a recommendation to the board to grant continued approval, place the program on conditional approval or withdraw approval.

1. A nursing education program shall continue to be approved provided the requirements set forth in Article 2 of this part are attained and maintained.

2. If the committee determines that a nursing education program is not maintaining the requirements of Article 2 of this part, the committee shall recommend to the board that the program be placed on conditional approval and the governing institution shall be given a reasonable period of time to correct the identified deficiencies.

a. The committee shall receive and review reports of progress toward correcting identified deficiencies and, when a final report is received at the end of the specified time showing correction of deficiencies, make a recommendation to the board to grant continued approval, continue the program on conditional approval or withdraw approval.

b. If the nursing education program fails to correct the identified deficiencies within the time specified by an order of the board, the board may withdraw the approval following a formal hearing.

c. The governing institution may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional approval.

D. Interim visits shall be made to the institution by board representatives at any time within the approval period either by request or as deemed necessary by the board. Prior to the conduct of such a visit, the program shall submit the fee for a survey visit as required by 18VAC90-20-30.

E. Failure to submit the required fee for a survey or site visit may subject an education program to board action or withdrawal of board approval.

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 by the board to the last known 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 $50 $30 and verification 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 prior to applying for recertification.

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.

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.

18VAC90-30-50. Fees.

Fees required in connection with the licensure of nurse practitioners are:

1. Application	$85 $125
2. Biennial licensure renewal	$50 $80
3. Late renewal	$20 $25
4. Reinstatement of licensure	$85 $150
5. Verification of licensure to another jurisdiction	$25 $35
6. Duplicate license	$5 $15
7. Duplicate wall certificate	$15 $25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200

18VAC90-40-70. Fees for prescriptive authority.

The following fees have been established by the boards:

1. Initial issuance of prescriptive authority	$50 $75
2. Biennial renewal	$25 $35
3. Late renewal	$10 $15
4. Reinstatement of lapsed authorization	$60 $90
5. Reinstatement of suspended or revoked authorization	$85
6. Duplicate of authorization	$5 $15
7. Return check charge	$35

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial certification	$105 $140
2. Biennial renewal	$70 $95
3. Late renewal	$25 $30
4. Reinstatement of certification	$120 $150
5. Reinstatement after suspension or revocation	$150 $200
6. Duplicate certificate	$5 $15
7. Replacement wall certificate	$15 $25
8. Verification of certification	$25 $35
9. Transcript of all or part of applicant/certificate holder records	$25 $35
10. Returned check charge	$35

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$25 $30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check	$35
7. Duplicate registration	$5 $15
8. Reinstatement following suspension, mandatory suspension or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the competency evaluation shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-30, 18VAC90-20-40, 18VAC90-20-60, 18VAC90-20-151, 18VAC90-20-160).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-80).

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-50).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-70).

18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information:

September 14, 2010 - 11 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Avenue, Suite 201, Richmond, VA

Public Comment Deadline: November 12, 2010.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the board the authority to promulgate regulations to administer the regulatory system and to levy fees. The specific regulatory mandate for an increase in fees is found in § 54.1-113 of the Code of Virginia.

Purpose: The issue to be addressed is the need of the Board of Nursing to increase its fees to cover expenses for essential functions of licensure, investigation of complaints, and adjudication of disciplinary cases to ensure minimal competency for persons licensed, certified, or registered by the board. The board also reviewed and considered expenditures relating to initial or continued approval of nursing education programs.

The scope of the board's regulatory responsibility includes the following 12 occupations or entities with approximately 182,000 licensees, certificate holders, and registrants:

Registered nurses

Licensed practical nurses

Licensed nurse practitioners

Authorization to prescribe

Clinical nurse specialists

Certified nurse aides

Advanced nurse aides

Medication aides

Certified massage therapists

Virginia professional schools of nursing

Virginia practical schools of nursing

Volunteer registration

Section 54.1-113 of the Code of Virginia requires that at the end of each biennium, an analysis of revenues and expenditures of each regulatory board shall be performed. It is necessary that each board have sufficient revenue to cover its expenditures. By the close of FY10, it is projected that the Board of Nursing (in the combined budgets of Nursing and Certified Nurse Aides) will have $10,879,889 in expenses and only $8,359,143 in revenue. With a modest surplus carried forward from previous years, the board is expected to end the fiscal year with a deficit of $687,532 by June 30, 2010, and will continue to build increasing deficits through the fiscal years going forward. Since the fees from regulants will no longer generate sufficient funds to pay operating expenses for the board, promulgation of regulations for a fee increase is essential. To begin to reduce the deficits and have sufficient funding for the operation of the board by calendar year 2011, amendments to regulations must be adopted at the earliest possible date.

Fee increases for licensees regulated by the Board of Nursing are necessary in order for the board and the Department of Health Professions to continue performing essential functions of licensing, certifying, or registering new practitioners, and protecting the public from continued practice by incompetent or unethical practitioners. Since the Board of Nursing is the only health regulatory board with a statutory responsibility for approval of education programs, it must also have additional revenue to support functions related to assuring that new and existing nursing education programs meet minimal standards.

Substance: The Board of Nursing is proposing amendments to increase fees charged to regulants and applicants and to establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees would be increased as follows: (i) registered nurses, $45; (ii) licensed practical nurses, $25; (iii) licensed nurse practitioners, $30; (iv) certified massage therapists, $25; and (v) clinical nurse specialists, $20.

For initial approval of a nursing education program, there is an increase of $450 in the application fee. Fees for survey visits to nursing education programs ($2,200) and site visits for failure to achieve 80% NCLEX passage rates ($1,500) would be added in amounts sufficient to offset the board's expenses for such visits.

For certified nurse aides, the board proposes to change the renewal cycle from biennial (current fee of $50) to annual (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions, are increased proportionally.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $687,532 at the end of FY10 and projected to increase to almost $13.5 million in FY14, there could be significant delays in (i) licensing new nurses, CNA's, medication aides, and nurse practitioners, and (ii) the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in biennial renewal fees ranging from $25 to $45 for nurses and in annual renewal fees for CNA's and medication aides should not significantly impact the cost of nursing care for Virginians.

There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to increase most fees paid by licensees, registrants, and certificate holders that are subject to the Board's authority and to establish new fees to cover the cost of continued approval of nursing education programs.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. Under current regulations, registered nurses (RNs) and licensed practical nurses (LPN) pay the same licensure fees. Currently, schools that are planning on starting a nursing education program, and are applying for Board approval, must currently submit, at least 12 months in advance of the expected opening, a statement of intent and $1,200 application fee.

With these proposed regulations, the Board intends to separate most licensure fees paid by RNs from those paid by LPNs (all fees except the fee for reinstatement of a suspended or revoked license), raise the application fee for approval of nursing programs and establish new fees for survey visits for nursing program that are being newly approved and site visits for nursing programs whose NCLEX (National Council Licensure Examination) passage rates fall below 80%. Board staff reports that these new fees are needed to cover the costs associated with required staff on-site visits. The Board also proposes to raise all fees set in chapter 18 VAC 90-20 except the fee on returned checks. Below is a comparison table for current and proposed fees:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure by Examination RN	$130	$190	46.15%
Application for Licensure by Endorsement RN	$130	$190	46.15%
Application for Licensure by Examination LPN	$130	$170	30.77%
Application for Licensure by Endorsement LPN	$130	$170	30.77%
Reapplication for Licensure by Examination	$25	$50	100%
Biennial License Renewal RN	$95	$140	47.36%
Biennial Inactive License Renewal RN	$50	$70	40%
Biennial License Renewal LPN	$95	$120	26.32%
Biennial Inactive License Renewal LPN	$50	$60	20%
Late Renewal RN	$35	$50	42.86%
Late Renewal LPN	$35	$40	14.29%
Reinstatement of Lapsed License RN	$145	$225	55.17%
Reinstatement of Lapsed License LPN	$145	$200	37.93%
Reinstatement of a Suspended or Revoked License	$185	$300	62.16%
Duplicate License	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of License	$25	$35	40%
Transcript of All or Part of Applicant/ Licensee Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged
Application of Clinical Nurse Specialist (CNS) Registration	$95	$130	36.84%
Biennial Renewal of CNS Registration	$60	$80	33.33%
Reinstatement of Lapsed CNS Registration	$105	$125	19.05%
Verification of CNS Registration to Another Jurisdiction	$25	$35	40%
Late Renewal of CNS Registration	$20	$35	75%
Application for Approval of a Nursing Education Program	$1,200	$1,650	37.5%
Survey Visit For Nursing Education Program	N/A	$2,200	New Fee
Site Visit for NCLEX Passage Rate for Nursing Education Program	N/A	$1,500	New Fee

The Board also proposes to require certified nurse aides to renew their certification annually, rather than biennially, and proposes to change the renewal fee from $50 every two years to $30 every year. This change will affectively raise the cost of renewal by $10 (20%) every two years. Additionally, the Board proposes to raise fees in 18 VAC 90-30 (covering nurse practitioners), 18 VAC 90-40 (covering prescriptive authority for nurse practitioners), 18 VAC 90-50 (covering certified massage therapists) and 18 VAC 90-60 (medication aides).

Below is a comparison table of current and proposed fees for nurse practitioners:

FEE TYPE		CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure	$85		$125	47.06%
Biennial Licensure Renewal	$50		$80	60%
Late Renewal	$20		$25	30.77%
Reinstatement of Licensure	$85		$150	76.47%
Reinstatement of Suspended or Revoked License	$85		$200	135%
Verification of Licensure to Another Jurisdiction	$25		$35	40%
Duplicate License	$5		$15	200%
Duplicate Wall Certificate	$15		$25	66.67%
Returned Check Charge	$35		$35	unchanged

A comparison table of current and proposed fees for prescriptive authority:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Issuance of Prescriptive Authority	$50	$75	50%
Biennial Renewal	$25	$35	40%
Late Renewal	$25	$30	20%
Reinstatement of Lapsed Authorization	$60	$90	50%
Reinstatement of Revoked or Suspended Authorization	$85	$85	unchanged
Duplicate of Authorization	$5	$15	200%
Returned Check Charge	$35	$35	unchanged

And a comparison table of current and proposed fees for massage therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application and Initial Certification	$105	$140	33.33%
Biennial Renewal	$70	$95	35.71%
Late Renewal	$25	$30	20%
Reinstatement of Certification	$120	$150	25%
Reinstatement after Revocation or Suspension	$150	$200	33.33%
Duplicate Certificate	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of Certification	$25	$35	40%
Transcript of All or Part of Applicant/ Certificate Holder Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged

The Board proposes to increase the annual renewal fee (from $25 to $30) and the duplicate registration fee (from $5 to $15) for medication aides.

Board staff reports that the Board expects to run a deficit of $687,532 for FY2010 and that, absent approval of these fee increases, there will be deficit spending through the fiscal years going forward. Board staff further reports that these fee increases are needed to cover 1) the costs associated with the increased number of disciplinary actions, particularly involving certified nurse aides, 2) the costs associated with on-site inspections of nursing education programs for which the Board is currently not reimbursed and 3) increasing costs for information technology (IT) services.

Board staff reports that investigation of voluminous complaints against certified nurse aides has increased the Boards disciplinary costs. The Board feels, however that trying to only adjust certified nurse aide fees to pay for these increased costs would have a significant and chilling effect on individuals decisions to work in this field. The Board, instead, proposes to increase all nursing fees incrementally to cover these costs. As an alternative to the portion of fee increases that will be used to cover increased disciplinary costs, the Board may wish to consider measures that have costs falling to certified nurse aides or their employers. The Board might, for instance, look in to requiring employers of certified nurse aides to carry surety bonds that would make them responsible for poor behavior on the part of their employees. Such an action would likely require the cooperation of other regulatory bodies in the Commonwealth that set requirements for facilities that hire certified nurse aides.

The Department of Health Professions (DHP) reports that a portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have almost doubled over the last two years, and are expected to increase approximately $500,000 this year. For comparison, DHPs VITA expenditures for FY 2005 were, in total, $476,600. For FY 2010, the agency has budgeted $1,587,788 for VITA costs.. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHPs licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). The Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP boards) would benefit from increased scrutiny of services provided to DHP through VITA.

The Board does not believe that these fee increases are large enough to affect either regulated entities choice to be employed in their current fields or the cost of nursing care in Virginia. One would expect to see, however, some marginal decrease in the number of individuals choosing to be licensed, certified or registered as the cost of licensure, certification and registration increases even if those increases are moderate. Particularly, individuals who are making little to no extra money at the tasks licensed, certified, and registered by the Board, when compared to their next best option for employment, will likely choose their next best option if their costs for doing their current jobs increase. To the (likely minimal) extent that individuals who are currently licensed or registered find that these proposed fee increases cause them to leave their current professions, total employment for this group in these professions may decrease by some small amount.

Businesses and Entities Affected. DHP reports that the Board currently regulates 91,316 registered nurses, 29,828 licensed practical nurses, 5,887 licensed nurse practitioners (3,456 of whom are authorized to prescribe medication), 5,335 certified massage therapists, 436 clinical nurse specialists, 3,577 medication aides, 46,281 certified nurse aides, 99 advanced certified nurse aides, 68 professional schools of nursing and 80 practical schools of nursing. All of these entities, as well as any individuals or entities who may wish to become licensed, certified or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action may decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. To the extent that the proposed fee increases for nursing schools increase costs for affected proprietary nursing schools, profits will likely decrease. If this happens, the value of these businesses will marginally decrease. Proposed fee increases that would affect only new nursing schools may slightly decrease the chance of new programs starting in the future.

Small Businesses: Costs and Other Effects. DHP reports that there are 13 proprietary RN programs and 23 proprietary LPN programs in the Commonwealth; all of these are likely small businesses. Existing nursing program small businesses in the Commonwealth will incur costs for increased fees only if the NCLEX passage rates of their graduates fall below 80%.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall (including fees that fall on proprietary nursing schools). The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis:

The Board of Nursing does not concur with the analysis of the Department of Planning and Budget for the proposed amendments to Regulations of the Board of Nursing, to increase fees for the following reasons:

1) The Board does not agree that sharply higher fees for certified nurse aides might have an ameliorative effect on the poor behavior of this group.

• There is absolutely no historic evidence for any health regulatory board to support the assertion that a sharp increase in fees would cause the professionals to police themselves and the behavior of their cohorts. On July 14, 2004, there was a 36% increase in the renewal fees for registered nurses. For the fiscal year ending June 30, 2005, number of complaints per 1,000 licensees for registered nurses was 5.21; for the fiscal year ending June 30, 2006, the number per 1,000 was 5.64.

• While there are a large number of complaints filed and disciplinary proceedings held for certified nurse aides, the rate of complaints is far less than many other professions. During the 2007-08 fiscal year, the complaint rate for certified nurse aides was 9.95 per 1,000; for licensed practical nurses, the rate was 13.15 and for nurse practitioners, the rate was 13.25. There are a large number of cases because there are a large number of certified nurse aides (typically 42,000 to 43,000).

• The problem is that the Board of Nursing is not permitted by federal law to charge a fee to place a person on the Nurse Aide Registry (charge an application fee), and the profession is not highly compensated so its renewal fees alone cannot support the disciplinary and administrative costs of operation. Other similar professions, such as pharmacy technicians, do not support the activities associated with investigating and disciplining the profession with their renewal fees alone.

2) The Board has no authority to consider measures that would pass on the costs for the nurse aide registry to the employers, as is suggested in the EIA. Further, the purchase of a surety bond, as recommended in the EIA, could not accrue to the budget of the Board. A surety bond protects against financial losses to the facility or institution making such a purchase; it would not make them responsible for poor behavior on the part of their employees.

3) In order to make fees for certified nurse aides sufficient to cover expenditures related to that portion of the budget, the current fee of $50 per biennium would need to be increased to approximately $170, just to offset the accumulated shortfall. That action would likely deplete the workforce that primarily provides care in all long-term care facilities and many other patient settings.

4) The EIA notes that one would expect to see some marginal decrease in the number of individuals choosing to be licensed, certified or registered affecting total employment in these professions. In 2003 and 2004, there was a substantial increase in fees for nurses; yet the number of licensed nurses increased from 122,653 in FY03 to 126,454 in FY04 and 127,858 in FY05. Clearly, there are factors other than a biennial renewal fee that determine licensure and employment in a health care profession such as nursing.

Summary:

The proposed amendments would increase fees charged to regulants and applicants and establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees for registered nurses would be increased by $45 and for licensed practical nurses by $25. For initial approval of a nursing education program, there would be an increase in the application fee of $450. Fees for survey visits and site visits to nursing education programs would be added in amounts sufficient to offset the board's expenses for such visits.

Similar increases are proposed for clinical nurse specialists, licensed nurse practitioners, and certified massage therapists. For certified nurse aides, the board proposes to change the renewal cycle from a biennial cycle (current fee of $50) to an annual cycle (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions would be increased proportionally.

18VAC90-20-30. Fees.

Fees required by the board are:

1. Application for licensure by examination - RN	$130 $190
2. Application for licensure by endorsement - RN	$130 $190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
3. 5. Reapplication for licensure by examination	$25 $50
4. 6. Biennial licensure renewal - RN	$95 $140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
5. 10. Late renewal - RN	$35 $50
11. Late renewal - LPN	$40
6. 12. Reinstatement of lapsed license - RN	$145 $225
13. Reinstatement of lapsed license - LPN	$200
7. 14. Reinstatement of suspended or revoked license	$185 $300
8. 15. Duplicate license	$5 $15
9. 16. Replacement wall certificate	$15 $25
10. 17. Verification of license	$25 $35
11. 18. Transcript of all or part of applicant/licensee records	$25 $35
12. 19. Returned check charge	$35
13. 20. Application for CNS registration	$95 $130
14. 21. Biennial renewal of CNS registration	$60 $80
15. 22. Reinstatement of lapsed CNS registration	$105 $125
16. 23. Verification of CNS registration to another jurisdiction	$25 $35
17. 24. Late renewal of CNS registration	$20 $35
18. Inactive licensure renewal	$50
19. Late renewal of an inactive license	$15
25. Application for approval of a nursing education program	$1,650
26. Survey visit for nursing education program	$2,200
27. Site visit for NCLEX passage rate for nursing education program	$1,500

Part II
Nursing Education Programs

Article 1
Establishing a Nursing Education Program

18VAC90-20-40. Application.

A. An institution wishing to establish a nursing education program shall:

1. Submit to the board, at least 12 months in advance of expected opening date, a statement of intent to establish a nursing education program along with an application fee of $1,200 as prescribed in 18VAC90-20-30.

2. Submit to the board evidence documenting adequate resources for the projected number of students and the ability to provide a program that can meet the requirements of Article 2 (18VAC90-20-70 et seq.) of this part to include the following information:

a. Organizational structure of the institution and relationship of nursing program therein;

b. Purpose and type of program;

c. Availability of qualified faculty sufficient to provide classroom instruction and clinical supervision for the number of students specified by the program;

d. Budgeted faculty positions sufficient in number to provide classroom instruction and clinical supervision;

e. Availability of clinical training facilities for the program as evidenced by copies of contracts or letters of agreement specifying the responsibilities of the respective parties and indicating sufficient availability of clinical experiences for the number of students in the program;

f. Availability of academic facilities for the program, including classrooms, laboratory, and library;

g. Evidence of financial resources for the planning, implementation and continuation of the program with budget projections for three years;

h. Tentative time schedule for planning and initiating the program; and

i. An enrollment plan specifying the beginning dates and number of students for each class for a two-year period from the date of initial approval.

3. Respond to the board's request for additional information.

B. A site visit may be conducted by a representative of the board.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review applications and the report of the site visit and shall make recommendations to the board regarding the granting or denial of approval of the program application.

1. If the board accepts the recommendation to approve the program application, the institution may apply for provisional approval of the nursing education program as set forth in this chapter.

2. If the committee recommendation is to deny approval of the program application, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia.

18VAC90-20-60. Program approval.

A. The application for approval shall be complete when:

1. A self-evaluation report of compliance with Article 2 (18VAC90-20-70 et seq.) of this part has been submitted along with the fee for a survey visit as required by 18VAC90-20-30;

2. The first graduating class has taken the licensure examination, and the cumulative passing rate for the program's first-time test takers taking the NCLEX over the first four quarters following graduation of the first class is not less than 80%; and

3. A satisfactory survey visit and report has been made by a representative of the board verifying that the program is in compliance with all requirements for program approval.

B. The committee shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation, the NCLEX results and survey reports and shall make a recommendation to the board for the granting or denial of approval or for continuance of provisional approval.

C. If the committee's recommendation is to deny approval, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 of the Code of Virginia.

18VAC90-20-151. Passage rate on national examination.

A. For the purpose of continued approval by the board, a nursing education program shall maintain a passage rate for first-time test takers on the NCLEX that is not less than 80%, calculated on the cumulative results of the past four quarters in each year.

B. If a program falls below 80% for two consecutive years, the board shall conduct a site visit and place the program on conditional approval. Prior to the conduct of such a visit, the program shall submit the fee for a site visit pursuant to the NCLEX passage rate as required by 18VAC90-20-30. If a program falls below 80% for three consecutive years, the board may withdraw program approval.

C. For the purpose of program evaluation, the board may provide to the program the examination results of its graduates. However, further release of such information by the program shall not be authorized without written authorization from the candidate.

Article 3
Maintaining or Closing an Approved Nursing Education Program

18VAC90-20-160. Maintaining an approved nursing education program.

A. The program director of each nursing education program shall submit an annual report to the board.

B. Each nursing education program shall be reevaluated as follows:

1. A program that has not achieved accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every eight years for a practical nursing program and every six years for a registered nursing program by submission of a comprehensive self-evaluation report based on Article 2 (18VAC90-20-70 et seq.) of this part, and a survey visit by a representative(s) of the board on dates mutually acceptable to the institution and the board.

2. A program that has maintained accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the board. As evidence of compliance with specific requirements of this chapter, the board may accept the most recent study report, site visit report and final decision letter from the accrediting body. The board may require additional information or a site visit to ensure compliance with requirements of this chapter. If accreditation has been withdrawn or a program has been placed on probation, the board shall conduct an on-site survey visit within one year of such action. If a program fails to submit the documentation required in this subdivision, the requirements of subdivision 1 of this subsection shall apply.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation and survey reports and shall make a recommendation to the board to grant continued approval, place the program on conditional approval or withdraw approval.

1. A nursing education program shall continue to be approved provided the requirements set forth in Article 2 of this part are attained and maintained.

2. If the committee determines that a nursing education program is not maintaining the requirements of Article 2 of this part, the committee shall recommend to the board that the program be placed on conditional approval and the governing institution shall be given a reasonable period of time to correct the identified deficiencies.

a. The committee shall receive and review reports of progress toward correcting identified deficiencies and, when a final report is received at the end of the specified time showing correction of deficiencies, make a recommendation to the board to grant continued approval, continue the program on conditional approval or withdraw approval.

b. If the nursing education program fails to correct the identified deficiencies within the time specified by an order of the board, the board may withdraw the approval following a formal hearing.

c. The governing institution may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional approval.

D. Interim visits shall be made to the institution by board representatives at any time within the approval period either by request or as deemed necessary by the board. Prior to the conduct of such a visit, the program shall submit the fee for a survey visit as required by 18VAC90-20-30.

E. Failure to submit the required fee for a survey or site visit may subject an education program to board action or withdrawal of board approval.

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 by the board to the last known 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 $50 $30 and verification 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 prior to applying for recertification.

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.

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.

18VAC90-30-50. Fees.

Fees required in connection with the licensure of nurse practitioners are:

1. Application	$85 $125
2. Biennial licensure renewal	$50 $80
3. Late renewal	$20 $25
4. Reinstatement of licensure	$85 $150
5. Verification of licensure to another jurisdiction	$25 $35
6. Duplicate license	$5 $15
7. Duplicate wall certificate	$15 $25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200

18VAC90-40-70. Fees for prescriptive authority.

The following fees have been established by the boards:

1. Initial issuance of prescriptive authority	$50 $75
2. Biennial renewal	$25 $35
3. Late renewal	$10 $15
4. Reinstatement of lapsed authorization	$60 $90
5. Reinstatement of suspended or revoked authorization	$85
6. Duplicate of authorization	$5 $15
7. Return check charge	$35

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial certification	$105 $140
2. Biennial renewal	$70 $95
3. Late renewal	$25 $30
4. Reinstatement of certification	$120 $150
5. Reinstatement after suspension or revocation	$150 $200
6. Duplicate certificate	$5 $15
7. Replacement wall certificate	$15 $25
8. Verification of certification	$25 $35
9. Transcript of all or part of applicant/certificate holder records	$25 $35
10. Returned check charge	$35

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$25 $30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check	$35
7. Duplicate registration	$5 $15
8. Reinstatement following suspension, mandatory suspension or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the competency evaluation shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-30, 18VAC90-20-40, 18VAC90-20-60, 18VAC90-20-151, 18VAC90-20-160).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-80).

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-50).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-70).

18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information:

September 14, 2010 - 11 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Avenue, Suite 201, Richmond, VA

Public Comment Deadline: November 12, 2010.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the board the authority to promulgate regulations to administer the regulatory system and to levy fees. The specific regulatory mandate for an increase in fees is found in § 54.1-113 of the Code of Virginia.

Purpose: The issue to be addressed is the need of the Board of Nursing to increase its fees to cover expenses for essential functions of licensure, investigation of complaints, and adjudication of disciplinary cases to ensure minimal competency for persons licensed, certified, or registered by the board. The board also reviewed and considered expenditures relating to initial or continued approval of nursing education programs.

The scope of the board's regulatory responsibility includes the following 12 occupations or entities with approximately 182,000 licensees, certificate holders, and registrants:

Registered nurses

Licensed practical nurses

Licensed nurse practitioners

Authorization to prescribe

Clinical nurse specialists

Certified nurse aides

Advanced nurse aides

Medication aides

Certified massage therapists

Virginia professional schools of nursing

Virginia practical schools of nursing

Volunteer registration

Section 54.1-113 of the Code of Virginia requires that at the end of each biennium, an analysis of revenues and expenditures of each regulatory board shall be performed. It is necessary that each board have sufficient revenue to cover its expenditures. By the close of FY10, it is projected that the Board of Nursing (in the combined budgets of Nursing and Certified Nurse Aides) will have $10,879,889 in expenses and only $8,359,143 in revenue. With a modest surplus carried forward from previous years, the board is expected to end the fiscal year with a deficit of $687,532 by June 30, 2010, and will continue to build increasing deficits through the fiscal years going forward. Since the fees from regulants will no longer generate sufficient funds to pay operating expenses for the board, promulgation of regulations for a fee increase is essential. To begin to reduce the deficits and have sufficient funding for the operation of the board by calendar year 2011, amendments to regulations must be adopted at the earliest possible date.

Fee increases for licensees regulated by the Board of Nursing are necessary in order for the board and the Department of Health Professions to continue performing essential functions of licensing, certifying, or registering new practitioners, and protecting the public from continued practice by incompetent or unethical practitioners. Since the Board of Nursing is the only health regulatory board with a statutory responsibility for approval of education programs, it must also have additional revenue to support functions related to assuring that new and existing nursing education programs meet minimal standards.

Substance: The Board of Nursing is proposing amendments to increase fees charged to regulants and applicants and to establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees would be increased as follows: (i) registered nurses, $45; (ii) licensed practical nurses, $25; (iii) licensed nurse practitioners, $30; (iv) certified massage therapists, $25; and (v) clinical nurse specialists, $20.

For initial approval of a nursing education program, there is an increase of $450 in the application fee. Fees for survey visits to nursing education programs ($2,200) and site visits for failure to achieve 80% NCLEX passage rates ($1,500) would be added in amounts sufficient to offset the board's expenses for such visits.

For certified nurse aides, the board proposes to change the renewal cycle from biennial (current fee of $50) to annual (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions, are increased proportionally.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $687,532 at the end of FY10 and projected to increase to almost $13.5 million in FY14, there could be significant delays in (i) licensing new nurses, CNA's, medication aides, and nurse practitioners, and (ii) the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in biennial renewal fees ranging from $25 to $45 for nurses and in annual renewal fees for CNA's and medication aides should not significantly impact the cost of nursing care for Virginians.

There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to increase most fees paid by licensees, registrants, and certificate holders that are subject to the Board's authority and to establish new fees to cover the cost of continued approval of nursing education programs.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. Under current regulations, registered nurses (RNs) and licensed practical nurses (LPN) pay the same licensure fees. Currently, schools that are planning on starting a nursing education program, and are applying for Board approval, must currently submit, at least 12 months in advance of the expected opening, a statement of intent and $1,200 application fee.

With these proposed regulations, the Board intends to separate most licensure fees paid by RNs from those paid by LPNs (all fees except the fee for reinstatement of a suspended or revoked license), raise the application fee for approval of nursing programs and establish new fees for survey visits for nursing program that are being newly approved and site visits for nursing programs whose NCLEX (National Council Licensure Examination) passage rates fall below 80%. Board staff reports that these new fees are needed to cover the costs associated with required staff on-site visits. The Board also proposes to raise all fees set in chapter 18 VAC 90-20 except the fee on returned checks. Below is a comparison table for current and proposed fees:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure by Examination RN	$130	$190	46.15%
Application for Licensure by Endorsement RN	$130	$190	46.15%
Application for Licensure by Examination LPN	$130	$170	30.77%
Application for Licensure by Endorsement LPN	$130	$170	30.77%
Reapplication for Licensure by Examination	$25	$50	100%
Biennial License Renewal RN	$95	$140	47.36%
Biennial Inactive License Renewal RN	$50	$70	40%
Biennial License Renewal LPN	$95	$120	26.32%
Biennial Inactive License Renewal LPN	$50	$60	20%
Late Renewal RN	$35	$50	42.86%
Late Renewal LPN	$35	$40	14.29%
Reinstatement of Lapsed License RN	$145	$225	55.17%
Reinstatement of Lapsed License LPN	$145	$200	37.93%
Reinstatement of a Suspended or Revoked License	$185	$300	62.16%
Duplicate License	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of License	$25	$35	40%
Transcript of All or Part of Applicant/ Licensee Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged
Application of Clinical Nurse Specialist (CNS) Registration	$95	$130	36.84%
Biennial Renewal of CNS Registration	$60	$80	33.33%
Reinstatement of Lapsed CNS Registration	$105	$125	19.05%
Verification of CNS Registration to Another Jurisdiction	$25	$35	40%
Late Renewal of CNS Registration	$20	$35	75%
Application for Approval of a Nursing Education Program	$1,200	$1,650	37.5%
Survey Visit For Nursing Education Program	N/A	$2,200	New Fee
Site Visit for NCLEX Passage Rate for Nursing Education Program	N/A	$1,500	New Fee

The Board also proposes to require certified nurse aides to renew their certification annually, rather than biennially, and proposes to change the renewal fee from $50 every two years to $30 every year. This change will affectively raise the cost of renewal by $10 (20%) every two years. Additionally, the Board proposes to raise fees in 18 VAC 90-30 (covering nurse practitioners), 18 VAC 90-40 (covering prescriptive authority for nurse practitioners), 18 VAC 90-50 (covering certified massage therapists) and 18 VAC 90-60 (medication aides).

Below is a comparison table of current and proposed fees for nurse practitioners:

FEE TYPE		CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure	$85		$125	47.06%
Biennial Licensure Renewal	$50		$80	60%
Late Renewal	$20		$25	30.77%
Reinstatement of Licensure	$85		$150	76.47%
Reinstatement of Suspended or Revoked License	$85		$200	135%
Verification of Licensure to Another Jurisdiction	$25		$35	40%
Duplicate License	$5		$15	200%
Duplicate Wall Certificate	$15		$25	66.67%
Returned Check Charge	$35		$35	unchanged

A comparison table of current and proposed fees for prescriptive authority:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Issuance of Prescriptive Authority	$50	$75	50%
Biennial Renewal	$25	$35	40%
Late Renewal	$25	$30	20%
Reinstatement of Lapsed Authorization	$60	$90	50%
Reinstatement of Revoked or Suspended Authorization	$85	$85	unchanged
Duplicate of Authorization	$5	$15	200%
Returned Check Charge	$35	$35	unchanged

And a comparison table of current and proposed fees for massage therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application and Initial Certification	$105	$140	33.33%
Biennial Renewal	$70	$95	35.71%
Late Renewal	$25	$30	20%
Reinstatement of Certification	$120	$150	25%
Reinstatement after Revocation or Suspension	$150	$200	33.33%
Duplicate Certificate	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of Certification	$25	$35	40%
Transcript of All or Part of Applicant/ Certificate Holder Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged

The Board proposes to increase the annual renewal fee (from $25 to $30) and the duplicate registration fee (from $5 to $15) for medication aides.

Board staff reports that the Board expects to run a deficit of $687,532 for FY2010 and that, absent approval of these fee increases, there will be deficit spending through the fiscal years going forward. Board staff further reports that these fee increases are needed to cover 1) the costs associated with the increased number of disciplinary actions, particularly involving certified nurse aides, 2) the costs associated with on-site inspections of nursing education programs for which the Board is currently not reimbursed and 3) increasing costs for information technology (IT) services.

Board staff reports that investigation of voluminous complaints against certified nurse aides has increased the Boards disciplinary costs. The Board feels, however that trying to only adjust certified nurse aide fees to pay for these increased costs would have a significant and chilling effect on individuals decisions to work in this field. The Board, instead, proposes to increase all nursing fees incrementally to cover these costs. As an alternative to the portion of fee increases that will be used to cover increased disciplinary costs, the Board may wish to consider measures that have costs falling to certified nurse aides or their employers. The Board might, for instance, look in to requiring employers of certified nurse aides to carry surety bonds that would make them responsible for poor behavior on the part of their employees. Such an action would likely require the cooperation of other regulatory bodies in the Commonwealth that set requirements for facilities that hire certified nurse aides.

The Department of Health Professions (DHP) reports that a portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have almost doubled over the last two years, and are expected to increase approximately $500,000 this year. For comparison, DHPs VITA expenditures for FY 2005 were, in total, $476,600. For FY 2010, the agency has budgeted $1,587,788 for VITA costs.. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHPs licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). The Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP boards) would benefit from increased scrutiny of services provided to DHP through VITA.

The Board does not believe that these fee increases are large enough to affect either regulated entities choice to be employed in their current fields or the cost of nursing care in Virginia. One would expect to see, however, some marginal decrease in the number of individuals choosing to be licensed, certified or registered as the cost of licensure, certification and registration increases even if those increases are moderate. Particularly, individuals who are making little to no extra money at the tasks licensed, certified, and registered by the Board, when compared to their next best option for employment, will likely choose their next best option if their costs for doing their current jobs increase. To the (likely minimal) extent that individuals who are currently licensed or registered find that these proposed fee increases cause them to leave their current professions, total employment for this group in these professions may decrease by some small amount.

Businesses and Entities Affected. DHP reports that the Board currently regulates 91,316 registered nurses, 29,828 licensed practical nurses, 5,887 licensed nurse practitioners (3,456 of whom are authorized to prescribe medication), 5,335 certified massage therapists, 436 clinical nurse specialists, 3,577 medication aides, 46,281 certified nurse aides, 99 advanced certified nurse aides, 68 professional schools of nursing and 80 practical schools of nursing. All of these entities, as well as any individuals or entities who may wish to become licensed, certified or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action may decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. To the extent that the proposed fee increases for nursing schools increase costs for affected proprietary nursing schools, profits will likely decrease. If this happens, the value of these businesses will marginally decrease. Proposed fee increases that would affect only new nursing schools may slightly decrease the chance of new programs starting in the future.

Small Businesses: Costs and Other Effects. DHP reports that there are 13 proprietary RN programs and 23 proprietary LPN programs in the Commonwealth; all of these are likely small businesses. Existing nursing program small businesses in the Commonwealth will incur costs for increased fees only if the NCLEX passage rates of their graduates fall below 80%.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall (including fees that fall on proprietary nursing schools). The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis:

The Board of Nursing does not concur with the analysis of the Department of Planning and Budget for the proposed amendments to Regulations of the Board of Nursing, to increase fees for the following reasons:

1) The Board does not agree that sharply higher fees for certified nurse aides might have an ameliorative effect on the poor behavior of this group.

• There is absolutely no historic evidence for any health regulatory board to support the assertion that a sharp increase in fees would cause the professionals to police themselves and the behavior of their cohorts. On July 14, 2004, there was a 36% increase in the renewal fees for registered nurses. For the fiscal year ending June 30, 2005, number of complaints per 1,000 licensees for registered nurses was 5.21; for the fiscal year ending June 30, 2006, the number per 1,000 was 5.64.

• While there are a large number of complaints filed and disciplinary proceedings held for certified nurse aides, the rate of complaints is far less than many other professions. During the 2007-08 fiscal year, the complaint rate for certified nurse aides was 9.95 per 1,000; for licensed practical nurses, the rate was 13.15 and for nurse practitioners, the rate was 13.25. There are a large number of cases because there are a large number of certified nurse aides (typically 42,000 to 43,000).

• The problem is that the Board of Nursing is not permitted by federal law to charge a fee to place a person on the Nurse Aide Registry (charge an application fee), and the profession is not highly compensated so its renewal fees alone cannot support the disciplinary and administrative costs of operation. Other similar professions, such as pharmacy technicians, do not support the activities associated with investigating and disciplining the profession with their renewal fees alone.

2) The Board has no authority to consider measures that would pass on the costs for the nurse aide registry to the employers, as is suggested in the EIA. Further, the purchase of a surety bond, as recommended in the EIA, could not accrue to the budget of the Board. A surety bond protects against financial losses to the facility or institution making such a purchase; it would not make them responsible for poor behavior on the part of their employees.

3) In order to make fees for certified nurse aides sufficient to cover expenditures related to that portion of the budget, the current fee of $50 per biennium would need to be increased to approximately $170, just to offset the accumulated shortfall. That action would likely deplete the workforce that primarily provides care in all long-term care facilities and many other patient settings.

4) The EIA notes that one would expect to see some marginal decrease in the number of individuals choosing to be licensed, certified or registered affecting total employment in these professions. In 2003 and 2004, there was a substantial increase in fees for nurses; yet the number of licensed nurses increased from 122,653 in FY03 to 126,454 in FY04 and 127,858 in FY05. Clearly, there are factors other than a biennial renewal fee that determine licensure and employment in a health care profession such as nursing.

Summary:

The proposed amendments would increase fees charged to regulants and applicants and establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees for registered nurses would be increased by $45 and for licensed practical nurses by $25. For initial approval of a nursing education program, there would be an increase in the application fee of $450. Fees for survey visits and site visits to nursing education programs would be added in amounts sufficient to offset the board's expenses for such visits.

Similar increases are proposed for clinical nurse specialists, licensed nurse practitioners, and certified massage therapists. For certified nurse aides, the board proposes to change the renewal cycle from a biennial cycle (current fee of $50) to an annual cycle (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions would be increased proportionally.

18VAC90-20-30. Fees.

Fees required by the board are:

1. Application for licensure by examination - RN	$130 $190
2. Application for licensure by endorsement - RN	$130 $190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
3. 5. Reapplication for licensure by examination	$25 $50
4. 6. Biennial licensure renewal - RN	$95 $140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
5. 10. Late renewal - RN	$35 $50
11. Late renewal - LPN	$40
6. 12. Reinstatement of lapsed license - RN	$145 $225
13. Reinstatement of lapsed license - LPN	$200
7. 14. Reinstatement of suspended or revoked license	$185 $300
8. 15. Duplicate license	$5 $15
9. 16. Replacement wall certificate	$15 $25
10. 17. Verification of license	$25 $35
11. 18. Transcript of all or part of applicant/licensee records	$25 $35
12. 19. Returned check charge	$35
13. 20. Application for CNS registration	$95 $130
14. 21. Biennial renewal of CNS registration	$60 $80
15. 22. Reinstatement of lapsed CNS registration	$105 $125
16. 23. Verification of CNS registration to another jurisdiction	$25 $35
17. 24. Late renewal of CNS registration	$20 $35
18. Inactive licensure renewal	$50
19. Late renewal of an inactive license	$15
25. Application for approval of a nursing education program	$1,650
26. Survey visit for nursing education program	$2,200
27. Site visit for NCLEX passage rate for nursing education program	$1,500

Part II
Nursing Education Programs

Article 1
Establishing a Nursing Education Program

18VAC90-20-40. Application.

A. An institution wishing to establish a nursing education program shall:

1. Submit to the board, at least 12 months in advance of expected opening date, a statement of intent to establish a nursing education program along with an application fee of $1,200 as prescribed in 18VAC90-20-30.

2. Submit to the board evidence documenting adequate resources for the projected number of students and the ability to provide a program that can meet the requirements of Article 2 (18VAC90-20-70 et seq.) of this part to include the following information:

a. Organizational structure of the institution and relationship of nursing program therein;

b. Purpose and type of program;

c. Availability of qualified faculty sufficient to provide classroom instruction and clinical supervision for the number of students specified by the program;

d. Budgeted faculty positions sufficient in number to provide classroom instruction and clinical supervision;

e. Availability of clinical training facilities for the program as evidenced by copies of contracts or letters of agreement specifying the responsibilities of the respective parties and indicating sufficient availability of clinical experiences for the number of students in the program;

f. Availability of academic facilities for the program, including classrooms, laboratory, and library;

g. Evidence of financial resources for the planning, implementation and continuation of the program with budget projections for three years;

h. Tentative time schedule for planning and initiating the program; and

i. An enrollment plan specifying the beginning dates and number of students for each class for a two-year period from the date of initial approval.

3. Respond to the board's request for additional information.

B. A site visit may be conducted by a representative of the board.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review applications and the report of the site visit and shall make recommendations to the board regarding the granting or denial of approval of the program application.

1. If the board accepts the recommendation to approve the program application, the institution may apply for provisional approval of the nursing education program as set forth in this chapter.

2. If the committee recommendation is to deny approval of the program application, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia.

18VAC90-20-60. Program approval.

A. The application for approval shall be complete when:

1. A self-evaluation report of compliance with Article 2 (18VAC90-20-70 et seq.) of this part has been submitted along with the fee for a survey visit as required by 18VAC90-20-30;

2. The first graduating class has taken the licensure examination, and the cumulative passing rate for the program's first-time test takers taking the NCLEX over the first four quarters following graduation of the first class is not less than 80%; and

3. A satisfactory survey visit and report has been made by a representative of the board verifying that the program is in compliance with all requirements for program approval.

B. The committee shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation, the NCLEX results and survey reports and shall make a recommendation to the board for the granting or denial of approval or for continuance of provisional approval.

C. If the committee's recommendation is to deny approval, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 of the Code of Virginia.

18VAC90-20-151. Passage rate on national examination.

A. For the purpose of continued approval by the board, a nursing education program shall maintain a passage rate for first-time test takers on the NCLEX that is not less than 80%, calculated on the cumulative results of the past four quarters in each year.

B. If a program falls below 80% for two consecutive years, the board shall conduct a site visit and place the program on conditional approval. Prior to the conduct of such a visit, the program shall submit the fee for a site visit pursuant to the NCLEX passage rate as required by 18VAC90-20-30. If a program falls below 80% for three consecutive years, the board may withdraw program approval.

C. For the purpose of program evaluation, the board may provide to the program the examination results of its graduates. However, further release of such information by the program shall not be authorized without written authorization from the candidate.

Article 3
Maintaining or Closing an Approved Nursing Education Program

18VAC90-20-160. Maintaining an approved nursing education program.

A. The program director of each nursing education program shall submit an annual report to the board.

B. Each nursing education program shall be reevaluated as follows:

1. A program that has not achieved accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every eight years for a practical nursing program and every six years for a registered nursing program by submission of a comprehensive self-evaluation report based on Article 2 (18VAC90-20-70 et seq.) of this part, and a survey visit by a representative(s) of the board on dates mutually acceptable to the institution and the board.

2. A program that has maintained accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the board. As evidence of compliance with specific requirements of this chapter, the board may accept the most recent study report, site visit report and final decision letter from the accrediting body. The board may require additional information or a site visit to ensure compliance with requirements of this chapter. If accreditation has been withdrawn or a program has been placed on probation, the board shall conduct an on-site survey visit within one year of such action. If a program fails to submit the documentation required in this subdivision, the requirements of subdivision 1 of this subsection shall apply.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation and survey reports and shall make a recommendation to the board to grant continued approval, place the program on conditional approval or withdraw approval.

1. A nursing education program shall continue to be approved provided the requirements set forth in Article 2 of this part are attained and maintained.

2. If the committee determines that a nursing education program is not maintaining the requirements of Article 2 of this part, the committee shall recommend to the board that the program be placed on conditional approval and the governing institution shall be given a reasonable period of time to correct the identified deficiencies.

a. The committee shall receive and review reports of progress toward correcting identified deficiencies and, when a final report is received at the end of the specified time showing correction of deficiencies, make a recommendation to the board to grant continued approval, continue the program on conditional approval or withdraw approval.

b. If the nursing education program fails to correct the identified deficiencies within the time specified by an order of the board, the board may withdraw the approval following a formal hearing.

c. The governing institution may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional approval.

D. Interim visits shall be made to the institution by board representatives at any time within the approval period either by request or as deemed necessary by the board. Prior to the conduct of such a visit, the program shall submit the fee for a survey visit as required by 18VAC90-20-30.

E. Failure to submit the required fee for a survey or site visit may subject an education program to board action or withdrawal of board approval.

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 by the board to the last known 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 $50 $30 and verification 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 prior to applying for recertification.

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.

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.

18VAC90-30-50. Fees.

Fees required in connection with the licensure of nurse practitioners are:

1. Application	$85 $125
2. Biennial licensure renewal	$50 $80
3. Late renewal	$20 $25
4. Reinstatement of licensure	$85 $150
5. Verification of licensure to another jurisdiction	$25 $35
6. Duplicate license	$5 $15
7. Duplicate wall certificate	$15 $25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200

18VAC90-40-70. Fees for prescriptive authority.

The following fees have been established by the boards:

1. Initial issuance of prescriptive authority	$50 $75
2. Biennial renewal	$25 $35
3. Late renewal	$10 $15
4. Reinstatement of lapsed authorization	$60 $90
5. Reinstatement of suspended or revoked authorization	$85
6. Duplicate of authorization	$5 $15
7. Return check charge	$35

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial certification	$105 $140
2. Biennial renewal	$70 $95
3. Late renewal	$25 $30
4. Reinstatement of certification	$120 $150
5. Reinstatement after suspension or revocation	$150 $200
6. Duplicate certificate	$5 $15
7. Replacement wall certificate	$15 $25
8. Verification of certification	$25 $35
9. Transcript of all or part of applicant/certificate holder records	$25 $35
10. Returned check charge	$35

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$25 $30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check	$35
7. Duplicate registration	$5 $15
8. Reinstatement following suspension, mandatory suspension or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the competency evaluation shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-30, 18VAC90-20-40, 18VAC90-20-60, 18VAC90-20-151, 18VAC90-20-160).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-80).

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-50).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-70).

18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information:

September 14, 2010 - 11 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Avenue, Suite 201, Richmond, VA

Public Comment Deadline: November 12, 2010.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the board the authority to promulgate regulations to administer the regulatory system and to levy fees. The specific regulatory mandate for an increase in fees is found in § 54.1-113 of the Code of Virginia.

Purpose: The issue to be addressed is the need of the Board of Nursing to increase its fees to cover expenses for essential functions of licensure, investigation of complaints, and adjudication of disciplinary cases to ensure minimal competency for persons licensed, certified, or registered by the board. The board also reviewed and considered expenditures relating to initial or continued approval of nursing education programs.

The scope of the board's regulatory responsibility includes the following 12 occupations or entities with approximately 182,000 licensees, certificate holders, and registrants:

Registered nurses

Licensed practical nurses

Licensed nurse practitioners

Authorization to prescribe

Clinical nurse specialists

Certified nurse aides

Advanced nurse aides

Medication aides

Certified massage therapists

Virginia professional schools of nursing

Virginia practical schools of nursing

Volunteer registration

Section 54.1-113 of the Code of Virginia requires that at the end of each biennium, an analysis of revenues and expenditures of each regulatory board shall be performed. It is necessary that each board have sufficient revenue to cover its expenditures. By the close of FY10, it is projected that the Board of Nursing (in the combined budgets of Nursing and Certified Nurse Aides) will have $10,879,889 in expenses and only $8,359,143 in revenue. With a modest surplus carried forward from previous years, the board is expected to end the fiscal year with a deficit of $687,532 by June 30, 2010, and will continue to build increasing deficits through the fiscal years going forward. Since the fees from regulants will no longer generate sufficient funds to pay operating expenses for the board, promulgation of regulations for a fee increase is essential. To begin to reduce the deficits and have sufficient funding for the operation of the board by calendar year 2011, amendments to regulations must be adopted at the earliest possible date.

Fee increases for licensees regulated by the Board of Nursing are necessary in order for the board and the Department of Health Professions to continue performing essential functions of licensing, certifying, or registering new practitioners, and protecting the public from continued practice by incompetent or unethical practitioners. Since the Board of Nursing is the only health regulatory board with a statutory responsibility for approval of education programs, it must also have additional revenue to support functions related to assuring that new and existing nursing education programs meet minimal standards.

Substance: The Board of Nursing is proposing amendments to increase fees charged to regulants and applicants and to establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees would be increased as follows: (i) registered nurses, $45; (ii) licensed practical nurses, $25; (iii) licensed nurse practitioners, $30; (iv) certified massage therapists, $25; and (v) clinical nurse specialists, $20.

For initial approval of a nursing education program, there is an increase of $450 in the application fee. Fees for survey visits to nursing education programs ($2,200) and site visits for failure to achieve 80% NCLEX passage rates ($1,500) would be added in amounts sufficient to offset the board's expenses for such visits.

For certified nurse aides, the board proposes to change the renewal cycle from biennial (current fee of $50) to annual (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions, are increased proportionally.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $687,532 at the end of FY10 and projected to increase to almost $13.5 million in FY14, there could be significant delays in (i) licensing new nurses, CNA's, medication aides, and nurse practitioners, and (ii) the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in biennial renewal fees ranging from $25 to $45 for nurses and in annual renewal fees for CNA's and medication aides should not significantly impact the cost of nursing care for Virginians.

There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to increase most fees paid by licensees, registrants, and certificate holders that are subject to the Board's authority and to establish new fees to cover the cost of continued approval of nursing education programs.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. Under current regulations, registered nurses (RNs) and licensed practical nurses (LPN) pay the same licensure fees. Currently, schools that are planning on starting a nursing education program, and are applying for Board approval, must currently submit, at least 12 months in advance of the expected opening, a statement of intent and $1,200 application fee.

With these proposed regulations, the Board intends to separate most licensure fees paid by RNs from those paid by LPNs (all fees except the fee for reinstatement of a suspended or revoked license), raise the application fee for approval of nursing programs and establish new fees for survey visits for nursing program that are being newly approved and site visits for nursing programs whose NCLEX (National Council Licensure Examination) passage rates fall below 80%. Board staff reports that these new fees are needed to cover the costs associated with required staff on-site visits. The Board also proposes to raise all fees set in chapter 18 VAC 90-20 except the fee on returned checks. Below is a comparison table for current and proposed fees:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure by Examination RN	$130	$190	46.15%
Application for Licensure by Endorsement RN	$130	$190	46.15%
Application for Licensure by Examination LPN	$130	$170	30.77%
Application for Licensure by Endorsement LPN	$130	$170	30.77%
Reapplication for Licensure by Examination	$25	$50	100%
Biennial License Renewal RN	$95	$140	47.36%
Biennial Inactive License Renewal RN	$50	$70	40%
Biennial License Renewal LPN	$95	$120	26.32%
Biennial Inactive License Renewal LPN	$50	$60	20%
Late Renewal RN	$35	$50	42.86%
Late Renewal LPN	$35	$40	14.29%
Reinstatement of Lapsed License RN	$145	$225	55.17%
Reinstatement of Lapsed License LPN	$145	$200	37.93%
Reinstatement of a Suspended or Revoked License	$185	$300	62.16%
Duplicate License	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of License	$25	$35	40%
Transcript of All or Part of Applicant/ Licensee Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged
Application of Clinical Nurse Specialist (CNS) Registration	$95	$130	36.84%
Biennial Renewal of CNS Registration	$60	$80	33.33%
Reinstatement of Lapsed CNS Registration	$105	$125	19.05%
Verification of CNS Registration to Another Jurisdiction	$25	$35	40%
Late Renewal of CNS Registration	$20	$35	75%
Application for Approval of a Nursing Education Program	$1,200	$1,650	37.5%
Survey Visit For Nursing Education Program	N/A	$2,200	New Fee
Site Visit for NCLEX Passage Rate for Nursing Education Program	N/A	$1,500	New Fee

The Board also proposes to require certified nurse aides to renew their certification annually, rather than biennially, and proposes to change the renewal fee from $50 every two years to $30 every year. This change will affectively raise the cost of renewal by $10 (20%) every two years. Additionally, the Board proposes to raise fees in 18 VAC 90-30 (covering nurse practitioners), 18 VAC 90-40 (covering prescriptive authority for nurse practitioners), 18 VAC 90-50 (covering certified massage therapists) and 18 VAC 90-60 (medication aides).

Below is a comparison table of current and proposed fees for nurse practitioners:

FEE TYPE		CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure	$85		$125	47.06%
Biennial Licensure Renewal	$50		$80	60%
Late Renewal	$20		$25	30.77%
Reinstatement of Licensure	$85		$150	76.47%
Reinstatement of Suspended or Revoked License	$85		$200	135%
Verification of Licensure to Another Jurisdiction	$25		$35	40%
Duplicate License	$5		$15	200%
Duplicate Wall Certificate	$15		$25	66.67%
Returned Check Charge	$35		$35	unchanged

A comparison table of current and proposed fees for prescriptive authority:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Issuance of Prescriptive Authority	$50	$75	50%
Biennial Renewal	$25	$35	40%
Late Renewal	$25	$30	20%
Reinstatement of Lapsed Authorization	$60	$90	50%
Reinstatement of Revoked or Suspended Authorization	$85	$85	unchanged
Duplicate of Authorization	$5	$15	200%
Returned Check Charge	$35	$35	unchanged

And a comparison table of current and proposed fees for massage therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application and Initial Certification	$105	$140	33.33%
Biennial Renewal	$70	$95	35.71%
Late Renewal	$25	$30	20%
Reinstatement of Certification	$120	$150	25%
Reinstatement after Revocation or Suspension	$150	$200	33.33%
Duplicate Certificate	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of Certification	$25	$35	40%
Transcript of All or Part of Applicant/ Certificate Holder Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged

The Board proposes to increase the annual renewal fee (from $25 to $30) and the duplicate registration fee (from $5 to $15) for medication aides.

Board staff reports that the Board expects to run a deficit of $687,532 for FY2010 and that, absent approval of these fee increases, there will be deficit spending through the fiscal years going forward. Board staff further reports that these fee increases are needed to cover 1) the costs associated with the increased number of disciplinary actions, particularly involving certified nurse aides, 2) the costs associated with on-site inspections of nursing education programs for which the Board is currently not reimbursed and 3) increasing costs for information technology (IT) services.

Board staff reports that investigation of voluminous complaints against certified nurse aides has increased the Boards disciplinary costs. The Board feels, however that trying to only adjust certified nurse aide fees to pay for these increased costs would have a significant and chilling effect on individuals decisions to work in this field. The Board, instead, proposes to increase all nursing fees incrementally to cover these costs. As an alternative to the portion of fee increases that will be used to cover increased disciplinary costs, the Board may wish to consider measures that have costs falling to certified nurse aides or their employers. The Board might, for instance, look in to requiring employers of certified nurse aides to carry surety bonds that would make them responsible for poor behavior on the part of their employees. Such an action would likely require the cooperation of other regulatory bodies in the Commonwealth that set requirements for facilities that hire certified nurse aides.

The Department of Health Professions (DHP) reports that a portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have almost doubled over the last two years, and are expected to increase approximately $500,000 this year. For comparison, DHPs VITA expenditures for FY 2005 were, in total, $476,600. For FY 2010, the agency has budgeted $1,587,788 for VITA costs.. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHPs licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). The Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP boards) would benefit from increased scrutiny of services provided to DHP through VITA.

The Board does not believe that these fee increases are large enough to affect either regulated entities choice to be employed in their current fields or the cost of nursing care in Virginia. One would expect to see, however, some marginal decrease in the number of individuals choosing to be licensed, certified or registered as the cost of licensure, certification and registration increases even if those increases are moderate. Particularly, individuals who are making little to no extra money at the tasks licensed, certified, and registered by the Board, when compared to their next best option for employment, will likely choose their next best option if their costs for doing their current jobs increase. To the (likely minimal) extent that individuals who are currently licensed or registered find that these proposed fee increases cause them to leave their current professions, total employment for this group in these professions may decrease by some small amount.

Businesses and Entities Affected. DHP reports that the Board currently regulates 91,316 registered nurses, 29,828 licensed practical nurses, 5,887 licensed nurse practitioners (3,456 of whom are authorized to prescribe medication), 5,335 certified massage therapists, 436 clinical nurse specialists, 3,577 medication aides, 46,281 certified nurse aides, 99 advanced certified nurse aides, 68 professional schools of nursing and 80 practical schools of nursing. All of these entities, as well as any individuals or entities who may wish to become licensed, certified or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action may decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. To the extent that the proposed fee increases for nursing schools increase costs for affected proprietary nursing schools, profits will likely decrease. If this happens, the value of these businesses will marginally decrease. Proposed fee increases that would affect only new nursing schools may slightly decrease the chance of new programs starting in the future.

Small Businesses: Costs and Other Effects. DHP reports that there are 13 proprietary RN programs and 23 proprietary LPN programs in the Commonwealth; all of these are likely small businesses. Existing nursing program small businesses in the Commonwealth will incur costs for increased fees only if the NCLEX passage rates of their graduates fall below 80%.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall (including fees that fall on proprietary nursing schools). The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis:

The Board of Nursing does not concur with the analysis of the Department of Planning and Budget for the proposed amendments to Regulations of the Board of Nursing, to increase fees for the following reasons:

1) The Board does not agree that sharply higher fees for certified nurse aides might have an ameliorative effect on the poor behavior of this group.

• There is absolutely no historic evidence for any health regulatory board to support the assertion that a sharp increase in fees would cause the professionals to police themselves and the behavior of their cohorts. On July 14, 2004, there was a 36% increase in the renewal fees for registered nurses. For the fiscal year ending June 30, 2005, number of complaints per 1,000 licensees for registered nurses was 5.21; for the fiscal year ending June 30, 2006, the number per 1,000 was 5.64.

• While there are a large number of complaints filed and disciplinary proceedings held for certified nurse aides, the rate of complaints is far less than many other professions. During the 2007-08 fiscal year, the complaint rate for certified nurse aides was 9.95 per 1,000; for licensed practical nurses, the rate was 13.15 and for nurse practitioners, the rate was 13.25. There are a large number of cases because there are a large number of certified nurse aides (typically 42,000 to 43,000).

• The problem is that the Board of Nursing is not permitted by federal law to charge a fee to place a person on the Nurse Aide Registry (charge an application fee), and the profession is not highly compensated so its renewal fees alone cannot support the disciplinary and administrative costs of operation. Other similar professions, such as pharmacy technicians, do not support the activities associated with investigating and disciplining the profession with their renewal fees alone.

2) The Board has no authority to consider measures that would pass on the costs for the nurse aide registry to the employers, as is suggested in the EIA. Further, the purchase of a surety bond, as recommended in the EIA, could not accrue to the budget of the Board. A surety bond protects against financial losses to the facility or institution making such a purchase; it would not make them responsible for poor behavior on the part of their employees.

3) In order to make fees for certified nurse aides sufficient to cover expenditures related to that portion of the budget, the current fee of $50 per biennium would need to be increased to approximately $170, just to offset the accumulated shortfall. That action would likely deplete the workforce that primarily provides care in all long-term care facilities and many other patient settings.

4) The EIA notes that one would expect to see some marginal decrease in the number of individuals choosing to be licensed, certified or registered affecting total employment in these professions. In 2003 and 2004, there was a substantial increase in fees for nurses; yet the number of licensed nurses increased from 122,653 in FY03 to 126,454 in FY04 and 127,858 in FY05. Clearly, there are factors other than a biennial renewal fee that determine licensure and employment in a health care profession such as nursing.

Summary:

The proposed amendments would increase fees charged to regulants and applicants and establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees for registered nurses would be increased by $45 and for licensed practical nurses by $25. For initial approval of a nursing education program, there would be an increase in the application fee of $450. Fees for survey visits and site visits to nursing education programs would be added in amounts sufficient to offset the board's expenses for such visits.

Similar increases are proposed for clinical nurse specialists, licensed nurse practitioners, and certified massage therapists. For certified nurse aides, the board proposes to change the renewal cycle from a biennial cycle (current fee of $50) to an annual cycle (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions would be increased proportionally.

18VAC90-20-30. Fees.

Fees required by the board are:

1. Application for licensure by examination - RN	$130 $190
2. Application for licensure by endorsement - RN	$130 $190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
3. 5. Reapplication for licensure by examination	$25 $50
4. 6. Biennial licensure renewal - RN	$95 $140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
5. 10. Late renewal - RN	$35 $50
11. Late renewal - LPN	$40
6. 12. Reinstatement of lapsed license - RN	$145 $225
13. Reinstatement of lapsed license - LPN	$200
7. 14. Reinstatement of suspended or revoked license	$185 $300
8. 15. Duplicate license	$5 $15
9. 16. Replacement wall certificate	$15 $25
10. 17. Verification of license	$25 $35
11. 18. Transcript of all or part of applicant/licensee records	$25 $35
12. 19. Returned check charge	$35
13. 20. Application for CNS registration	$95 $130
14. 21. Biennial renewal of CNS registration	$60 $80
15. 22. Reinstatement of lapsed CNS registration	$105 $125
16. 23. Verification of CNS registration to another jurisdiction	$25 $35
17. 24. Late renewal of CNS registration	$20 $35
18. Inactive licensure renewal	$50
19. Late renewal of an inactive license	$15
25. Application for approval of a nursing education program	$1,650
26. Survey visit for nursing education program	$2,200
27. Site visit for NCLEX passage rate for nursing education program	$1,500

Part II
Nursing Education Programs

Article 1
Establishing a Nursing Education Program

18VAC90-20-40. Application.

A. An institution wishing to establish a nursing education program shall:

1. Submit to the board, at least 12 months in advance of expected opening date, a statement of intent to establish a nursing education program along with an application fee of $1,200 as prescribed in 18VAC90-20-30.

2. Submit to the board evidence documenting adequate resources for the projected number of students and the ability to provide a program that can meet the requirements of Article 2 (18VAC90-20-70 et seq.) of this part to include the following information:

a. Organizational structure of the institution and relationship of nursing program therein;

b. Purpose and type of program;

c. Availability of qualified faculty sufficient to provide classroom instruction and clinical supervision for the number of students specified by the program;

d. Budgeted faculty positions sufficient in number to provide classroom instruction and clinical supervision;

e. Availability of clinical training facilities for the program as evidenced by copies of contracts or letters of agreement specifying the responsibilities of the respective parties and indicating sufficient availability of clinical experiences for the number of students in the program;

f. Availability of academic facilities for the program, including classrooms, laboratory, and library;

g. Evidence of financial resources for the planning, implementation and continuation of the program with budget projections for three years;

h. Tentative time schedule for planning and initiating the program; and

i. An enrollment plan specifying the beginning dates and number of students for each class for a two-year period from the date of initial approval.

3. Respond to the board's request for additional information.

B. A site visit may be conducted by a representative of the board.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review applications and the report of the site visit and shall make recommendations to the board regarding the granting or denial of approval of the program application.

1. If the board accepts the recommendation to approve the program application, the institution may apply for provisional approval of the nursing education program as set forth in this chapter.

2. If the committee recommendation is to deny approval of the program application, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia.

18VAC90-20-60. Program approval.

A. The application for approval shall be complete when:

1. A self-evaluation report of compliance with Article 2 (18VAC90-20-70 et seq.) of this part has been submitted along with the fee for a survey visit as required by 18VAC90-20-30;

2. The first graduating class has taken the licensure examination, and the cumulative passing rate for the program's first-time test takers taking the NCLEX over the first four quarters following graduation of the first class is not less than 80%; and

3. A satisfactory survey visit and report has been made by a representative of the board verifying that the program is in compliance with all requirements for program approval.

B. The committee shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation, the NCLEX results and survey reports and shall make a recommendation to the board for the granting or denial of approval or for continuance of provisional approval.

C. If the committee's recommendation is to deny approval, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 of the Code of Virginia.

18VAC90-20-151. Passage rate on national examination.

A. For the purpose of continued approval by the board, a nursing education program shall maintain a passage rate for first-time test takers on the NCLEX that is not less than 80%, calculated on the cumulative results of the past four quarters in each year.

B. If a program falls below 80% for two consecutive years, the board shall conduct a site visit and place the program on conditional approval. Prior to the conduct of such a visit, the program shall submit the fee for a site visit pursuant to the NCLEX passage rate as required by 18VAC90-20-30. If a program falls below 80% for three consecutive years, the board may withdraw program approval.

C. For the purpose of program evaluation, the board may provide to the program the examination results of its graduates. However, further release of such information by the program shall not be authorized without written authorization from the candidate.

Article 3
Maintaining or Closing an Approved Nursing Education Program

18VAC90-20-160. Maintaining an approved nursing education program.

A. The program director of each nursing education program shall submit an annual report to the board.

B. Each nursing education program shall be reevaluated as follows:

1. A program that has not achieved accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every eight years for a practical nursing program and every six years for a registered nursing program by submission of a comprehensive self-evaluation report based on Article 2 (18VAC90-20-70 et seq.) of this part, and a survey visit by a representative(s) of the board on dates mutually acceptable to the institution and the board.

2. A program that has maintained accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the board. As evidence of compliance with specific requirements of this chapter, the board may accept the most recent study report, site visit report and final decision letter from the accrediting body. The board may require additional information or a site visit to ensure compliance with requirements of this chapter. If accreditation has been withdrawn or a program has been placed on probation, the board shall conduct an on-site survey visit within one year of such action. If a program fails to submit the documentation required in this subdivision, the requirements of subdivision 1 of this subsection shall apply.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation and survey reports and shall make a recommendation to the board to grant continued approval, place the program on conditional approval or withdraw approval.

1. A nursing education program shall continue to be approved provided the requirements set forth in Article 2 of this part are attained and maintained.

2. If the committee determines that a nursing education program is not maintaining the requirements of Article 2 of this part, the committee shall recommend to the board that the program be placed on conditional approval and the governing institution shall be given a reasonable period of time to correct the identified deficiencies.

a. The committee shall receive and review reports of progress toward correcting identified deficiencies and, when a final report is received at the end of the specified time showing correction of deficiencies, make a recommendation to the board to grant continued approval, continue the program on conditional approval or withdraw approval.

b. If the nursing education program fails to correct the identified deficiencies within the time specified by an order of the board, the board may withdraw the approval following a formal hearing.

c. The governing institution may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional approval.

D. Interim visits shall be made to the institution by board representatives at any time within the approval period either by request or as deemed necessary by the board. Prior to the conduct of such a visit, the program shall submit the fee for a survey visit as required by 18VAC90-20-30.

E. Failure to submit the required fee for a survey or site visit may subject an education program to board action or withdrawal of board approval.

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 by the board to the last known 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 $50 $30 and verification 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 prior to applying for recertification.

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.

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.

18VAC90-30-50. Fees.

Fees required in connection with the licensure of nurse practitioners are:

1. Application	$85 $125
2. Biennial licensure renewal	$50 $80
3. Late renewal	$20 $25
4. Reinstatement of licensure	$85 $150
5. Verification of licensure to another jurisdiction	$25 $35
6. Duplicate license	$5 $15
7. Duplicate wall certificate	$15 $25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200

18VAC90-40-70. Fees for prescriptive authority.

The following fees have been established by the boards:

1. Initial issuance of prescriptive authority	$50 $75
2. Biennial renewal	$25 $35
3. Late renewal	$10 $15
4. Reinstatement of lapsed authorization	$60 $90
5. Reinstatement of suspended or revoked authorization	$85
6. Duplicate of authorization	$5 $15
7. Return check charge	$35

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial certification	$105 $140
2. Biennial renewal	$70 $95
3. Late renewal	$25 $30
4. Reinstatement of certification	$120 $150
5. Reinstatement after suspension or revocation	$150 $200
6. Duplicate certificate	$5 $15
7. Replacement wall certificate	$15 $25
8. Verification of certification	$25 $35
9. Transcript of all or part of applicant/certificate holder records	$25 $35
10. Returned check charge	$35

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$25 $30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check	$35
7. Duplicate registration	$5 $15
8. Reinstatement following suspension, mandatory suspension or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the competency evaluation shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-30, 18VAC90-20-40, 18VAC90-20-60, 18VAC90-20-151, 18VAC90-20-160).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-80).

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-50).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-70).

18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information:

September 14, 2010 - 11 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Avenue, Suite 201, Richmond, VA

Public Comment Deadline: November 12, 2010.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the board the authority to promulgate regulations to administer the regulatory system and to levy fees. The specific regulatory mandate for an increase in fees is found in § 54.1-113 of the Code of Virginia.

Purpose: The issue to be addressed is the need of the Board of Nursing to increase its fees to cover expenses for essential functions of licensure, investigation of complaints, and adjudication of disciplinary cases to ensure minimal competency for persons licensed, certified, or registered by the board. The board also reviewed and considered expenditures relating to initial or continued approval of nursing education programs.

The scope of the board's regulatory responsibility includes the following 12 occupations or entities with approximately 182,000 licensees, certificate holders, and registrants:

Registered nurses

Licensed practical nurses

Licensed nurse practitioners

Authorization to prescribe

Clinical nurse specialists

Certified nurse aides

Advanced nurse aides

Medication aides

Certified massage therapists

Virginia professional schools of nursing

Virginia practical schools of nursing

Volunteer registration

Section 54.1-113 of the Code of Virginia requires that at the end of each biennium, an analysis of revenues and expenditures of each regulatory board shall be performed. It is necessary that each board have sufficient revenue to cover its expenditures. By the close of FY10, it is projected that the Board of Nursing (in the combined budgets of Nursing and Certified Nurse Aides) will have $10,879,889 in expenses and only $8,359,143 in revenue. With a modest surplus carried forward from previous years, the board is expected to end the fiscal year with a deficit of $687,532 by June 30, 2010, and will continue to build increasing deficits through the fiscal years going forward. Since the fees from regulants will no longer generate sufficient funds to pay operating expenses for the board, promulgation of regulations for a fee increase is essential. To begin to reduce the deficits and have sufficient funding for the operation of the board by calendar year 2011, amendments to regulations must be adopted at the earliest possible date.

Fee increases for licensees regulated by the Board of Nursing are necessary in order for the board and the Department of Health Professions to continue performing essential functions of licensing, certifying, or registering new practitioners, and protecting the public from continued practice by incompetent or unethical practitioners. Since the Board of Nursing is the only health regulatory board with a statutory responsibility for approval of education programs, it must also have additional revenue to support functions related to assuring that new and existing nursing education programs meet minimal standards.

Substance: The Board of Nursing is proposing amendments to increase fees charged to regulants and applicants and to establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees would be increased as follows: (i) registered nurses, $45; (ii) licensed practical nurses, $25; (iii) licensed nurse practitioners, $30; (iv) certified massage therapists, $25; and (v) clinical nurse specialists, $20.

For initial approval of a nursing education program, there is an increase of $450 in the application fee. Fees for survey visits to nursing education programs ($2,200) and site visits for failure to achieve 80% NCLEX passage rates ($1,500) would be added in amounts sufficient to offset the board's expenses for such visits.

For certified nurse aides, the board proposes to change the renewal cycle from biennial (current fee of $50) to annual (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions, are increased proportionally.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $687,532 at the end of FY10 and projected to increase to almost $13.5 million in FY14, there could be significant delays in (i) licensing new nurses, CNA's, medication aides, and nurse practitioners, and (ii) the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in biennial renewal fees ranging from $25 to $45 for nurses and in annual renewal fees for CNA's and medication aides should not significantly impact the cost of nursing care for Virginians.

There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to increase most fees paid by licensees, registrants, and certificate holders that are subject to the Board's authority and to establish new fees to cover the cost of continued approval of nursing education programs.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. Under current regulations, registered nurses (RNs) and licensed practical nurses (LPN) pay the same licensure fees. Currently, schools that are planning on starting a nursing education program, and are applying for Board approval, must currently submit, at least 12 months in advance of the expected opening, a statement of intent and $1,200 application fee.

With these proposed regulations, the Board intends to separate most licensure fees paid by RNs from those paid by LPNs (all fees except the fee for reinstatement of a suspended or revoked license), raise the application fee for approval of nursing programs and establish new fees for survey visits for nursing program that are being newly approved and site visits for nursing programs whose NCLEX (National Council Licensure Examination) passage rates fall below 80%. Board staff reports that these new fees are needed to cover the costs associated with required staff on-site visits. The Board also proposes to raise all fees set in chapter 18 VAC 90-20 except the fee on returned checks. Below is a comparison table for current and proposed fees:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure by Examination RN	$130	$190	46.15%
Application for Licensure by Endorsement RN	$130	$190	46.15%
Application for Licensure by Examination LPN	$130	$170	30.77%
Application for Licensure by Endorsement LPN	$130	$170	30.77%
Reapplication for Licensure by Examination	$25	$50	100%
Biennial License Renewal RN	$95	$140	47.36%
Biennial Inactive License Renewal RN	$50	$70	40%
Biennial License Renewal LPN	$95	$120	26.32%
Biennial Inactive License Renewal LPN	$50	$60	20%
Late Renewal RN	$35	$50	42.86%
Late Renewal LPN	$35	$40	14.29%
Reinstatement of Lapsed License RN	$145	$225	55.17%
Reinstatement of Lapsed License LPN	$145	$200	37.93%
Reinstatement of a Suspended or Revoked License	$185	$300	62.16%
Duplicate License	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of License	$25	$35	40%
Transcript of All or Part of Applicant/ Licensee Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged
Application of Clinical Nurse Specialist (CNS) Registration	$95	$130	36.84%
Biennial Renewal of CNS Registration	$60	$80	33.33%
Reinstatement of Lapsed CNS Registration	$105	$125	19.05%
Verification of CNS Registration to Another Jurisdiction	$25	$35	40%
Late Renewal of CNS Registration	$20	$35	75%
Application for Approval of a Nursing Education Program	$1,200	$1,650	37.5%
Survey Visit For Nursing Education Program	N/A	$2,200	New Fee
Site Visit for NCLEX Passage Rate for Nursing Education Program	N/A	$1,500	New Fee

The Board also proposes to require certified nurse aides to renew their certification annually, rather than biennially, and proposes to change the renewal fee from $50 every two years to $30 every year. This change will affectively raise the cost of renewal by $10 (20%) every two years. Additionally, the Board proposes to raise fees in 18 VAC 90-30 (covering nurse practitioners), 18 VAC 90-40 (covering prescriptive authority for nurse practitioners), 18 VAC 90-50 (covering certified massage therapists) and 18 VAC 90-60 (medication aides).

Below is a comparison table of current and proposed fees for nurse practitioners:

FEE TYPE		CURRENT FEE	PROPOSED FEE	% INCREASE
Application for Licensure	$85		$125	47.06%
Biennial Licensure Renewal	$50		$80	60%
Late Renewal	$20		$25	30.77%
Reinstatement of Licensure	$85		$150	76.47%
Reinstatement of Suspended or Revoked License	$85		$200	135%
Verification of Licensure to Another Jurisdiction	$25		$35	40%
Duplicate License	$5		$15	200%
Duplicate Wall Certificate	$15		$25	66.67%
Returned Check Charge	$35		$35	unchanged

A comparison table of current and proposed fees for prescriptive authority:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Issuance of Prescriptive Authority	$50	$75	50%
Biennial Renewal	$25	$35	40%
Late Renewal	$25	$30	20%
Reinstatement of Lapsed Authorization	$60	$90	50%
Reinstatement of Revoked or Suspended Authorization	$85	$85	unchanged
Duplicate of Authorization	$5	$15	200%
Returned Check Charge	$35	$35	unchanged

And a comparison table of current and proposed fees for massage therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Application and Initial Certification	$105	$140	33.33%
Biennial Renewal	$70	$95	35.71%
Late Renewal	$25	$30	20%
Reinstatement of Certification	$120	$150	25%
Reinstatement after Revocation or Suspension	$150	$200	33.33%
Duplicate Certificate	$5	$15	200%
Replacement Wall Certificate	$15	$25	66.67%
Verification of Certification	$25	$35	40%
Transcript of All or Part of Applicant/ Certificate Holder Records	$25	$35	40%
Returned Check Charge	$35	$35	unchanged

The Board proposes to increase the annual renewal fee (from $25 to $30) and the duplicate registration fee (from $5 to $15) for medication aides.

Board staff reports that the Board expects to run a deficit of $687,532 for FY2010 and that, absent approval of these fee increases, there will be deficit spending through the fiscal years going forward. Board staff further reports that these fee increases are needed to cover 1) the costs associated with the increased number of disciplinary actions, particularly involving certified nurse aides, 2) the costs associated with on-site inspections of nursing education programs for which the Board is currently not reimbursed and 3) increasing costs for information technology (IT) services.

Board staff reports that investigation of voluminous complaints against certified nurse aides has increased the Boards disciplinary costs. The Board feels, however that trying to only adjust certified nurse aide fees to pay for these increased costs would have a significant and chilling effect on individuals decisions to work in this field. The Board, instead, proposes to increase all nursing fees incrementally to cover these costs. As an alternative to the portion of fee increases that will be used to cover increased disciplinary costs, the Board may wish to consider measures that have costs falling to certified nurse aides or their employers. The Board might, for instance, look in to requiring employers of certified nurse aides to carry surety bonds that would make them responsible for poor behavior on the part of their employees. Such an action would likely require the cooperation of other regulatory bodies in the Commonwealth that set requirements for facilities that hire certified nurse aides.

The Department of Health Professions (DHP) reports that a portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have almost doubled over the last two years, and are expected to increase approximately $500,000 this year. For comparison, DHPs VITA expenditures for FY 2005 were, in total, $476,600. For FY 2010, the agency has budgeted $1,587,788 for VITA costs.. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHPs licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). The Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP boards) would benefit from increased scrutiny of services provided to DHP through VITA.

The Board does not believe that these fee increases are large enough to affect either regulated entities choice to be employed in their current fields or the cost of nursing care in Virginia. One would expect to see, however, some marginal decrease in the number of individuals choosing to be licensed, certified or registered as the cost of licensure, certification and registration increases even if those increases are moderate. Particularly, individuals who are making little to no extra money at the tasks licensed, certified, and registered by the Board, when compared to their next best option for employment, will likely choose their next best option if their costs for doing their current jobs increase. To the (likely minimal) extent that individuals who are currently licensed or registered find that these proposed fee increases cause them to leave their current professions, total employment for this group in these professions may decrease by some small amount.

Businesses and Entities Affected. DHP reports that the Board currently regulates 91,316 registered nurses, 29,828 licensed practical nurses, 5,887 licensed nurse practitioners (3,456 of whom are authorized to prescribe medication), 5,335 certified massage therapists, 436 clinical nurse specialists, 3,577 medication aides, 46,281 certified nurse aides, 99 advanced certified nurse aides, 68 professional schools of nursing and 80 practical schools of nursing. All of these entities, as well as any individuals or entities who may wish to become licensed, certified or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action may decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. To the extent that the proposed fee increases for nursing schools increase costs for affected proprietary nursing schools, profits will likely decrease. If this happens, the value of these businesses will marginally decrease. Proposed fee increases that would affect only new nursing schools may slightly decrease the chance of new programs starting in the future.

Small Businesses: Costs and Other Effects. DHP reports that there are 13 proprietary RN programs and 23 proprietary LPN programs in the Commonwealth; all of these are likely small businesses. Existing nursing program small businesses in the Commonwealth will incur costs for increased fees only if the NCLEX passage rates of their graduates fall below 80%.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall (including fees that fall on proprietary nursing schools). The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis:

The Board of Nursing does not concur with the analysis of the Department of Planning and Budget for the proposed amendments to Regulations of the Board of Nursing, to increase fees for the following reasons:

1) The Board does not agree that sharply higher fees for certified nurse aides might have an ameliorative effect on the poor behavior of this group.

• There is absolutely no historic evidence for any health regulatory board to support the assertion that a sharp increase in fees would cause the professionals to police themselves and the behavior of their cohorts. On July 14, 2004, there was a 36% increase in the renewal fees for registered nurses. For the fiscal year ending June 30, 2005, number of complaints per 1,000 licensees for registered nurses was 5.21; for the fiscal year ending June 30, 2006, the number per 1,000 was 5.64.

• While there are a large number of complaints filed and disciplinary proceedings held for certified nurse aides, the rate of complaints is far less than many other professions. During the 2007-08 fiscal year, the complaint rate for certified nurse aides was 9.95 per 1,000; for licensed practical nurses, the rate was 13.15 and for nurse practitioners, the rate was 13.25. There are a large number of cases because there are a large number of certified nurse aides (typically 42,000 to 43,000).

• The problem is that the Board of Nursing is not permitted by federal law to charge a fee to place a person on the Nurse Aide Registry (charge an application fee), and the profession is not highly compensated so its renewal fees alone cannot support the disciplinary and administrative costs of operation. Other similar professions, such as pharmacy technicians, do not support the activities associated with investigating and disciplining the profession with their renewal fees alone.

2) The Board has no authority to consider measures that would pass on the costs for the nurse aide registry to the employers, as is suggested in the EIA. Further, the purchase of a surety bond, as recommended in the EIA, could not accrue to the budget of the Board. A surety bond protects against financial losses to the facility or institution making such a purchase; it would not make them responsible for poor behavior on the part of their employees.

3) In order to make fees for certified nurse aides sufficient to cover expenditures related to that portion of the budget, the current fee of $50 per biennium would need to be increased to approximately $170, just to offset the accumulated shortfall. That action would likely deplete the workforce that primarily provides care in all long-term care facilities and many other patient settings.

4) The EIA notes that one would expect to see some marginal decrease in the number of individuals choosing to be licensed, certified or registered affecting total employment in these professions. In 2003 and 2004, there was a substantial increase in fees for nurses; yet the number of licensed nurses increased from 122,653 in FY03 to 126,454 in FY04 and 127,858 in FY05. Clearly, there are factors other than a biennial renewal fee that determine licensure and employment in a health care profession such as nursing.

Summary:

The proposed amendments would increase fees charged to regulants and applicants and establish new fees to cover the cost of continued approval of nursing education programs. Biennial renewal fees for registered nurses would be increased by $45 and for licensed practical nurses by $25. For initial approval of a nursing education program, there would be an increase in the application fee of $450. Fees for survey visits and site visits to nursing education programs would be added in amounts sufficient to offset the board's expenses for such visits.

Similar increases are proposed for clinical nurse specialists, licensed nurse practitioners, and certified massage therapists. For certified nurse aides, the board proposes to change the renewal cycle from a biennial cycle (current fee of $50) to an annual cycle (proposed fee of $30). The annual fee for medication aides would also be raised by $5.00 for an annual fee of $30. Other fees, including application, inactive licensure, and late fees for all professions would be increased proportionally.

18VAC90-20-30. Fees.

Fees required by the board are:

1. Application for licensure by examination - RN	$130 $190
2. Application for licensure by endorsement - RN	$130 $190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
3. 5. Reapplication for licensure by examination	$25 $50
4. 6. Biennial licensure renewal - RN	$95 $140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
5. 10. Late renewal - RN	$35 $50
11. Late renewal - LPN	$40
6. 12. Reinstatement of lapsed license - RN	$145 $225
13. Reinstatement of lapsed license - LPN	$200
7. 14. Reinstatement of suspended or revoked license	$185 $300
8. 15. Duplicate license	$5 $15
9. 16. Replacement wall certificate	$15 $25
10. 17. Verification of license	$25 $35
11. 18. Transcript of all or part of applicant/licensee records	$25 $35
12. 19. Returned check charge	$35
13. 20. Application for CNS registration	$95 $130
14. 21. Biennial renewal of CNS registration	$60 $80
15. 22. Reinstatement of lapsed CNS registration	$105 $125
16. 23. Verification of CNS registration to another jurisdiction	$25 $35
17. 24. Late renewal of CNS registration	$20 $35
18. Inactive licensure renewal	$50
19. Late renewal of an inactive license	$15
25. Application for approval of a nursing education program	$1,650
26. Survey visit for nursing education program	$2,200
27. Site visit for NCLEX passage rate for nursing education program	$1,500

Part II
Nursing Education Programs

Article 1
Establishing a Nursing Education Program

18VAC90-20-40. Application.

A. An institution wishing to establish a nursing education program shall:

1. Submit to the board, at least 12 months in advance of expected opening date, a statement of intent to establish a nursing education program along with an application fee of $1,200 as prescribed in 18VAC90-20-30.

2. Submit to the board evidence documenting adequate resources for the projected number of students and the ability to provide a program that can meet the requirements of Article 2 (18VAC90-20-70 et seq.) of this part to include the following information:

a. Organizational structure of the institution and relationship of nursing program therein;

b. Purpose and type of program;

c. Availability of qualified faculty sufficient to provide classroom instruction and clinical supervision for the number of students specified by the program;

d. Budgeted faculty positions sufficient in number to provide classroom instruction and clinical supervision;

e. Availability of clinical training facilities for the program as evidenced by copies of contracts or letters of agreement specifying the responsibilities of the respective parties and indicating sufficient availability of clinical experiences for the number of students in the program;

f. Availability of academic facilities for the program, including classrooms, laboratory, and library;

g. Evidence of financial resources for the planning, implementation and continuation of the program with budget projections for three years;

h. Tentative time schedule for planning and initiating the program; and

i. An enrollment plan specifying the beginning dates and number of students for each class for a two-year period from the date of initial approval.

3. Respond to the board's request for additional information.

B. A site visit may be conducted by a representative of the board.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review applications and the report of the site visit and shall make recommendations to the board regarding the granting or denial of approval of the program application.

1. If the board accepts the recommendation to approve the program application, the institution may apply for provisional approval of the nursing education program as set forth in this chapter.

2. If the committee recommendation is to deny approval of the program application, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia.

18VAC90-20-60. Program approval.

A. The application for approval shall be complete when:

1. A self-evaluation report of compliance with Article 2 (18VAC90-20-70 et seq.) of this part has been submitted along with the fee for a survey visit as required by 18VAC90-20-30;

2. The first graduating class has taken the licensure examination, and the cumulative passing rate for the program's first-time test takers taking the NCLEX over the first four quarters following graduation of the first class is not less than 80%; and

3. A satisfactory survey visit and report has been made by a representative of the board verifying that the program is in compliance with all requirements for program approval.

B. The committee shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation, the NCLEX results and survey reports and shall make a recommendation to the board for the granting or denial of approval or for continuance of provisional approval.

C. If the committee's recommendation is to deny approval, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 of the Code of Virginia.

18VAC90-20-151. Passage rate on national examination.

A. For the purpose of continued approval by the board, a nursing education program shall maintain a passage rate for first-time test takers on the NCLEX that is not less than 80%, calculated on the cumulative results of the past four quarters in each year.

B. If a program falls below 80% for two consecutive years, the board shall conduct a site visit and place the program on conditional approval. Prior to the conduct of such a visit, the program shall submit the fee for a site visit pursuant to the NCLEX passage rate as required by 18VAC90-20-30. If a program falls below 80% for three consecutive years, the board may withdraw program approval.

C. For the purpose of program evaluation, the board may provide to the program the examination results of its graduates. However, further release of such information by the program shall not be authorized without written authorization from the candidate.

Article 3
Maintaining or Closing an Approved Nursing Education Program

18VAC90-20-160. Maintaining an approved nursing education program.

A. The program director of each nursing education program shall submit an annual report to the board.

B. Each nursing education program shall be reevaluated as follows:

1. A program that has not achieved accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every eight years for a practical nursing program and every six years for a registered nursing program by submission of a comprehensive self-evaluation report based on Article 2 (18VAC90-20-70 et seq.) of this part, and a survey visit by a representative(s) of the board on dates mutually acceptable to the institution and the board.

2. A program that has maintained accreditation as defined in 18VAC90-20-10 shall be reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the board. As evidence of compliance with specific requirements of this chapter, the board may accept the most recent study report, site visit report and final decision letter from the accrediting body. The board may require additional information or a site visit to ensure compliance with requirements of this chapter. If accreditation has been withdrawn or a program has been placed on probation, the board shall conduct an on-site survey visit within one year of such action. If a program fails to submit the documentation required in this subdivision, the requirements of subdivision 1 of this subsection shall apply.

C. The Education Special Conference Committee (the "committee"), composed of not less than two members of the board, shall, in accordance with § 2.2-4019 of the Code of Virginia, receive and review the self-evaluation and survey reports and shall make a recommendation to the board to grant continued approval, place the program on conditional approval or withdraw approval.

1. A nursing education program shall continue to be approved provided the requirements set forth in Article 2 of this part are attained and maintained.

2. If the committee determines that a nursing education program is not maintaining the requirements of Article 2 of this part, the committee shall recommend to the board that the program be placed on conditional approval and the governing institution shall be given a reasonable period of time to correct the identified deficiencies.

a. The committee shall receive and review reports of progress toward correcting identified deficiencies and, when a final report is received at the end of the specified time showing correction of deficiencies, make a recommendation to the board to grant continued approval, continue the program on conditional approval or withdraw approval.

b. If the nursing education program fails to correct the identified deficiencies within the time specified by an order of the board, the board may withdraw the approval following a formal hearing.

c. The governing institution may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 9 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional approval.

D. Interim visits shall be made to the institution by board representatives at any time within the approval period either by request or as deemed necessary by the board. Prior to the conduct of such a visit, the program shall submit the fee for a survey visit as required by 18VAC90-20-30.

E. Failure to submit the required fee for a survey or site visit may subject an education program to board action or withdrawal of board approval.

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 by the board to the last known 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 $50 $30 and verification 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 prior to applying for recertification.

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.

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.

18VAC90-30-50. Fees.

Fees required in connection with the licensure of nurse practitioners are:

1. Application	$85 $125
2. Biennial licensure renewal	$50 $80
3. Late renewal	$20 $25
4. Reinstatement of licensure	$85 $150
5. Verification of licensure to another jurisdiction	$25 $35
6. Duplicate license	$5 $15
7. Duplicate wall certificate	$15 $25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200

18VAC90-40-70. Fees for prescriptive authority.

The following fees have been established by the boards:

1. Initial issuance of prescriptive authority	$50 $75
2. Biennial renewal	$25 $35
3. Late renewal	$10 $15
4. Reinstatement of lapsed authorization	$60 $90
5. Reinstatement of suspended or revoked authorization	$85
6. Duplicate of authorization	$5 $15
7. Return check charge	$35

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial certification	$105 $140
2. Biennial renewal	$70 $95
3. Late renewal	$25 $30
4. Reinstatement of certification	$120 $150
5. Reinstatement after suspension or revocation	$150 $200
6. Duplicate certificate	$5 $15
7. Replacement wall certificate	$15 $25
8. Verification of certification	$25 $35
9. Transcript of all or part of applicant/certificate holder records	$25 $35
10. Returned check charge	$35

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$25 $30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check	$35
7. Duplicate registration	$5 $15
8. Reinstatement following suspension, mandatory suspension or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the competency evaluation shall be paid directly to the examination service contracted by the board for its administration.