TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-50).

18VAC90-50. Regulations Governing the Licensure 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 and 54.1-3505 of the Code of Virginia.

Public Hearing Information:

January 28, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 2, 9960 Mayland Drive, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Board of Nursing are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In addition, the board is obligated by § 54.1-113 of the Code of Virginia to adjust fees to cover operating costs.

Purpose: The board last instituted a fee increase in 2011. The previous fee increase prior to that was between 2004 and 2006, depending on the license type. The board instituted a one-time fee reduction in 2017 as required by the Callahan Act (§ 54.1-113 of the Code of Virginia). It is important to note that the one-time fee reduction resulted in a decreased revenue of $2,395,212 that would have helped the board cushion the current negative trend. Amendments to operation changes affecting available funds include: a 44% increase in licensees since 2003 (2003: 163,453; Q1 2024: 235,045); a 160% increase in employees of the board since 2003 (2003: 30; 2023: 78); a 5.0% increase in salary due to mandatory retirement system contributions; 42% increase in investigations since 2013; 27% increase in cases received since 2013; 37% increase in allocated enforcement costs since 2018; 110% increase in administrative proceedings division allocated costs; and a 49% increase in information technology costs.

The Board of Nursing also faces a unique issue related to the maintenance of the certified nurse aide (CNA) registry. The federal government requires the board to maintain the CNA registry, but limits what can be charged to CNAs in terms of fees. The board receives allowed reimbursements from the Department of Medical Assistance Services for maintenance of the registry, but the expenditures of the registry far outstrip the reimbursements. For example, in fiscal year (FY) 2024, the expenditures for 11 months up to May 2024 were $2.918 million and expected to be over $3 million for the entire fiscal year but allowed reimbursements will be only $556,722.

Without adequate revenue to support inspections of nursing programs, licensing, and disciplinary functions, work to protect the public by regulating, licensing, and disciplining the nursing workforce under the board will slow. This will deprive the citizens of the Commonwealth of safe and necessary nursing services. Additionally, should inadequate revenue cause a backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners who are actively committing violations of regulations or unprofessional conduct to continue practicing unencumbered for months while awaiting review and adjudication of disciplinary matters. The estimated FY 2025 cash balance, reflecting a projected revenue of $15,041,686 and expenditures of $20,095,428, will be -$2,548,279. The estimated FY 2026 cash balance, reflecting a projected revenue of $15,252,269 and expenditures of $20,895,868, will be -$8,191,878.

Substance: To address the deficit in board funding, the board will increase fees for most categories of practitioners and programs that the board regulates by 65% to 70%.

Issues: The primary advantage to the public is the continued licensing and disciplining of health care professionals by the board. There are no disadvantages to the public because the board is a special fund agency that is not funded by the general public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

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 Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Nursing (board) is proposing to amend six regulations to increase fees for its licensed professions in order to comply with § 54.1-113 B of the Code of Virginia (the Callahan Act).²

Background. The Callahan Act requires the Department of Health Professions (DHP) and its boards to revise fees in situations in which expenses allocated to the board for the past biennium are more than 10% greater or less than moneys collected on behalf of the board.³ DHP reports that over the 2022-2024 biennium, the board's total expenditures were $35,973,319 and total revenues were $29,625,358. Since the expenses exceed the revenues by 21%, these numbers would appear to satisfy the requirements of the Callahan Act, suggesting that a fee increase is necessary. DHP also reports that that the board is not currently in a deficit, with a cash balance of $2,480,785 at the end of fiscal year (FY) 2024. However, the board is projected to have a deficit of roughly $2.5 million by the end of the current fiscal year and a deficit of roughly $8 million by the close of FY 2026.⁴

DHP reports that the fees for this board were last increased in 2011⁵ and that there was also a one-time reduction in renewal fees in 2017.⁶ DHP reports that since the last fee increase, the board has experienced an increase in salaries (enacted by the General Assembly) as well as increases in infrastructure costs such as those attributed to technology and real estate. In addition, DHP reports that the number of licensees under this board has increased by 44% over the last 20 years; as a result, the number of disciplinary cases and investigations and the allocated costs from enforcement and administrative proceedings have also increased. Lastly, the federal government requires the board to maintain the Certified Nurse Aide (CNA) registry but limits the fees that can be charged to CNAs.⁷ DHP reports that the expenditures for the registry were over $3 million in FY 2024.

To prevent the anticipated deficit, the board proposes to increase fees for most categories of practitioners and programs by 65% to 70%. Incidental fees, such as those for late renewal or reinstatement, would be increased by a greater percentage than fees that are required for all licensees. Further, some licensees, such as Advanced Practice Registered Nurses (APRNs), would face a higher percentage fee increase to reflect their higher earning potential, whereas Licensed Massage Therapists (LMTs) would face a higher percentage fee increase because the profession generates a higher number of more complex disciplinary cases that take up more board member and staff time.⁸ The board does not propose to increase fees for Licensed Certified Midwives as they are a newly added license category and there are only six licensees as of June 2024. The proposed fee increases, which are listed in the following table, are expected to generate approximately $10 million in additional revenue per year.

Lastly, the board proposes to (i) add a new criminal background check administrative fee of $25 in the nursing regulation (18VAC90-19) and massage therapists regulation (18VAC90-50), (ii) repeal a $35 verification of license fee for nurses (18VAC90-19) since licenses can now be verified online at no cost, and (iii) repeal a $35 fee for a transcript of all or part of applicant/licensee records in the massage therapists regulation (18VAC90-50).

Estimated Benefits and Costs: The proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. The increased fees would allow the board to remain financially solvent and continue to provide oversight for these professions, including issuing licenses, conducting inspections, investigating complaints, and implementing any disciplinary actions. This in turn would maintain public confidence in these professionals and protect public safety from unscrupulous actors.

Businesses and Other Entities Affected. As mentioned previously, the proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. At the close of FY 2024, the board reported having 27,063 LPNs and 122,291 RNs; 51,552 CNAs and 50 Advanced CNAs; 20,988 APRNs; 8,263 LMTs; 7,377 medication aides; 40 practical schools of nursing and 67 professional schools of nursing, and 215 medication aide training programs.⁹ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁰ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹¹ Since the proposed amendments would increase costs, an adverse impact is indicated for the various nursing professionals and the training programs that would face higher fees.

Small Businesses¹² Affected.¹³ Types and Estimated Number of Small Businesses Affected. Since the board licenses individuals and not firms, no data on the number of affected small firms are available. Small businesses that employ RNs, LPNs, CNAs, APRNs, or medication aides may be indirectly affected if they pay for their employee license renewal fees. However, many of the LMTs may be self-employed or sole proprietors or employed by small businesses such as spas. Some nursing education and medication aide training programs may meet the definition of small businesses.

Costs and Other Effects. To the extent that small businesses pay for the practitioner licensure fees, their costs would increase commensurately with the proposed increases. Small businesses that operate training programs would face higher costs due to the increase in training program fees.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities¹⁴ Affected.¹⁵ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment prospects or entry into the profession for RNs, LPNs, CNAs, APRNs, LMTs, or medication aides.

Effects on the Use and Value of Private Property. The proposed fee increases would increase costs for private nursing education programs and medication aide training programs. Potentially, this may result in a modest decrease in their value. The proposed amendments do not affect real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title54.1/chapter1/section54.1-113/.

³ It should be noted that the Callahan Act does not specify whether moneys collected on behalf of the board refers only to the revenues in the immediately preceding biennium or if it also includes the cash balance from the biennium prior to that..

⁴ See page 3 of the Agency Background Document (ABD) https://townhall.virginia.gov/L/GetFile.cfm?File=27\6414\10416\AgencyStatement_DHP_10416_v1.pdf.

⁵ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=3110.

⁶ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4772.

⁷ See https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483/subpart-D/section-483.156.

⁸ See pages 8-14 of the ABD for details regarding the rationale for fee increases for each chapter.

⁹ Source: DHP. See https://www.dhp.virginia.gov/about/stats/2024Q4/ 04CurrentLicenseCountQ4FY2024.pdf.

¹⁰ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹¹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹² Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹³ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁴ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁵ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Nursing concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to § 54.1-113 of the Code of Virginia, the proposed amendments raise fees charged by the Board of Nursing to ensure the board obtains sufficient operating funds for fiscal years 2025 and 2026.

18VAC90-19-30. Fees.

A. Fees required by the board are:

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

18VAC90-25-16. Fees.

A. The following fees shall apply:

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

18VAC90-30-50. Fees.

A. Fees required in connection with the licensure of advanced practice registered nurses are:

B. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

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:

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

18VAC90-60-30. Fees.

A. The following fees shall apply:

B. Fees shall not be refunded once submitted.

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