Title of Regulation: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-10, 18VAC90-20-210).

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

Public Hearing Information:

July 21, 2009 - 11:30 a.m. - 9960 Mayland Drive, Board Room 2, Second Floor, Richmond, VA

Public Comments: Public comments may be submitted until July 24, 2009.

Agency Contact: Elaine J. Yeatts, Agency Regulatory Coordinator, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4688, FAX (804) 524-4434, or email elaine.yeatts@dhp.virginia.gov.

Basis: Section 54.1-2400 provides the Board of Nursing the authority to promulgate regulations to administer the regulatory system.

In addition, there is statutory language specifying certain requirements for foreign-trained nurses. The provision in § 54.1-3017 B for the Commission on Graduates of Foreign Nursing Schools examination is permissive, giving the board the option to eliminate the requirement.

Purpose: The Board of Nursing received a petition for rulemaking requesting the elimination of the examination of foreign-trained nurses by the Commission on Graduates of Foreign Nursing Schools (CGFNS) as a requirement for registered nurse licensure in Virginia. The signatories to the petitions and supporting letters requesting elimination of the CGFNS qualifying examination cite the current nursing shortage as an indication that the board should consider elimination of any barrier to licensure that is not necessary to ensure the competency of an applicant. Recruitment of nurses from other countries may help alleviate the shortage in Virginia if the barrier of CGFNS examination is removed. Since at least 22 other states currently do not require the CGFNS qualifying examination, foreign-trained nurses often choose to immigrate to those states instead.

Petitioners are not requesting elimination of the credentials review and the test of English proficiency; those coupled with a requirement for passage of National Council Licensing Examination (NCLEX), the national licensing examination that all nurses (RN or PN) must take, should assure that foreign-trained nurses have the basic nursing knowledge, clinical ability, and communication skills to practice with safety. Since NCLEX is more generally available in foreign countries than in the past, many nurses are able to come to the United States fully qualified for licensure. NCLEX is currently administered in Australia, Canada, England, Germany, Hong Kong, India, Japan, Mexico, Philippines, Puerto Rico, and Taiwan. For applicants from those countries, the CGFNS qualifying examination is viewed as an additional burden for licensure in Virginia.

Substance: Regulations eliminate the requirement for the CGFNS examination but maintain a requirement for the credentials review and test of English proficiency. Amendments also authorize acceptance of credentialing by an agency other than CGFNS if approved by the board.

Issues: The primary advantage to the public may be a very modest increase in the availability of foreign-educated nurses. Since a foreign-educated nurse must pass either the CGFNS qualifying examination or NCLEX prior to being given a visa, only applicants from countries where NCLEX is offered would benefit from elimination of the qualifying examination. There are no disadvantages; nurses from other countries would continue to be required to pass NCLEX, have educational credentials comparable to those required in the U.S., have some English proficiency, and have their foreign licenses verified as valid.

There are no advantages or disadvantages to the agency or the Commonwealth.

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

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to amend its standards for foreign-trained nurses to 1) eliminate the requirement that candidates applying for licensure as registered nurses pass the Commission on Graduates of Foreign Nursing Schools (CGFNS) qualifying examination and 2) require candidates for licensure as practical nurses to pass an English proficiency examination.

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

Estimated Economic Impact. Under current regulations, foreign-trained candidates applying for licensure as registered nurses must meet several requirements, including the requirement that they pass the CGFNS qualifying examination. Pursuant to a petition for rulemaking, which requested elimination of any requirements that are serving as an unnecessary barrier to licensure, the Board proposes to eliminate the regulatory requirement that candidates pass the CGFNS examination. These candidates will still have their education and current licensure evaluated by CGFNS and will have to prove proficiency in written and spoken English. In current regulations, foreign-trained registered (and practical) nurses have a 90 day window after licensure in which they can work while waiting to take, and pass, the National Council Licensing Examination (NCLEX) if they have not already taken this exam in their country of origin. The Board believes that these remaining requirements for licensure are sufficient to ensure that foreign-trained registered nurses are competent to practice in Virginia.

Even though current Virginia regulations allow foreign-trained registered nurses several months (after the Board issues their licenses) to take the NXCEX, federal law requires that foreign nurses who want to work in the United States pass either the CGFNS exam or the NCLEX before they obtain a work visa. Because of federal work visa requirements, which requires passage of one of these exams before entrance into the U.S., this proposed regulatory change will likely only benefit foreign nurses who are able to take the NCLEX in their countries of origin. The Department of Health Professions (DHP) reports that the NCLEX is currently available in Australia, Canada, England, Germany, Hong Kong, India, Japan, Mexico, the Philippines, Puerto Rico and Taiwan.

Under these proposed regulations, registered nurses from these countries who wish to work in Virginia will be able take the NCLEX before they enter the United States and will be able to forego taking the CGFNS exam. DHP reports that the fee for sitting the CGFNS exam is $15 (the CGFNS fee to complete other required verification and evaluation is $403). Affected candidates for licensure will be able to save the $15 fee plus any other costs (for study guide costs, time spent preparing for and taking the exam, etc.) that they may otherwise have incurred. This will decrease Virginia licensure costs slightly for these candidates. To the extent that decreasing these costs increases the number of foreign-trained nurses that seek Virginia licensure, citizens in Virginia will likely benefit from there being more licensed registered nurses working in the Commonwealth. Since DHP reports that there is currently a shortage of licensed registered nurses, any increase in emigration of these professionals to the state will likely improve health outcomes for patients.

Currently, Virginia regulations are silent on whether foreign-trained practical nurses have to be proficient in English before they are eligible for Virginia licensure. The Board proposes to require that these individuals pass an English proficiency exam or meet CGFNS criteria for an exemption. DHP reports that these candidates already have to prove proficiency in written and spoken English before they can obtain an occupational visa so the practical additional costs that candidates will accrue will likely only include copying costs for an additional copy of proof of English proficiency for the Board and, possibly, some additional postage costs. This proposed change will likely benefit English speaking patients of foreign-trained practical nurses as these patients will be able to better communicate their needs in their native tongue.

Businesses and Entities Affected. These proposed regulations will affect foreign-trained registered and practical nurses who wish to obtain Virginia licensure. DHP reports that the Board currently processes fewer than 100 applications from foreign trained nurses per year.

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

Projected Impact on Employment. To the extent that removing the requirement for CGFNS testing lowers the costs of obtaining Virginia licensure, a greater number of foreign-trained registered nurses may choose to obtain employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

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 DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget on proposed amended regulations for 18VAC90-20, Regulations Governing the Practice of Nursing.

Summary:

Amendments to the requirements for foreign-trained nurses are proposed to eliminate the qualifying examination requirement for registered nurses but retain the educational and licensure review for comparability and the requirement for a test of English proficiency. For practical nurses educated in other countries, the credentials review is retained and a test of English proficiency is included in regulations as it is now required for an occupational visa into the United States. For both professions, the Commission on Graduate of Foreign Nursing Schools is recognized in federal law and in Virginia regulation as the body that is approved to certify comparability and eligibility. However, the board may accept other agencies that provide a similar level of assurance and thoroughness in reviewing documents and tests for English proficiency.

Part I
General Provisions

18VAC90-20-10. Definitions.

In addition to words and terms defined in § 54.1-3030 of the Code of Virginia, the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Accreditation" means having been accredited by the National League for Nursing Accrediting Commission (NLNAC) or by the Commission on Collegiate Nursing Education (CCNE).

"Approval" means the process by which the board or a governmental agency in another state or foreign country evaluates and grants official recognition to nursing education programs that meet established standards not inconsistent with Virginia law.

"Associate degree nursing program" means a nursing education program preparing for registered nurse licensure, offered by a Virginia college or other institution and designed to lead to an associate degree in nursing, provided that the institution is authorized to confer such degree by the State Council of Higher Education.

"Baccalaureate degree nursing program" means a nursing education program preparing for registered nurse licensure, offered by a Virginia college or university and designed to lead to a baccalaureate degree with a major in nursing, provided that the institution is authorized to confer such degree by the State Council of Higher Education.

"Board" means the Board of Nursing.

"CGFNS" means the Commission on Graduates of Foreign Nursing Schools.

"Clinical setting" means any location in which the clinical practice of nursing occurs as specified in an agreement between the cooperating agency and the school of nursing.

"Conditional approval" means a time-limited status which results when an approved nursing education program has failed to maintain requirements as set forth in Article 2 (18VAC90-20-70 et seq.) of Part II of this chapter.

"Cooperating agency" means an agency or institution that enters into a written agreement to provide learning experiences for a nursing education program.

"Diploma nursing program" means a nursing education program preparing for registered nurse licensure, offered by a hospital and designed to lead to a diploma in nursing, provided the hospital is licensed in this state.

"NCLEX" means the National Council Licensing Examination.

"NCSBN" means the National Council of State Boards of Nursing.

"National certifying organization" means an organization that has as one of its purposes the certification of a specialty in nursing based on an examination attesting to the knowledge of the nurse for practice in the specialty area and is accredited by a national body recognized by NCSBN.

"Nursing education program" means an entity offering a basic course of study preparing persons for licensure as registered nurses or as licensed practical nurses. A basic course of study shall include all courses required for the degree, diploma or certificate.

"Nursing faculty" means registered nurses who teach the practice of nursing in nursing education programs.

"Practical nursing program" means a nursing education program preparing for practical nurse licensure that leads to a diploma or certificate in practical nursing, provided the school is authorized by the Virginia State Board of Education or the appropriate governmental credentialing agency.

"Preceptor" means a licensed health care provider who is employed in the clinical setting, serves as a resource person and role model, and is present with the nursing student in that setting.

"Primary state of residence" means the state of a person's declared fixed permanent and principal home or domicile for legal purposes.

"Program director" means a registered nurse who holds a current, unrestricted license in Virginia or a multistate licensure privilege and who has been designated by the controlling authority to administer the nursing education program.

"Provisional approval" means the initial status granted to a nursing education program which shall continue until the first class has graduated and the board has taken final action on the application for approval.

"Recommendation" means a guide to actions that will assist an institution to improve and develop its nursing education program.

"Requirement" means a mandatory condition that a nursing education program must meet to be approved.

18VAC90-20-210. Licensure of applicants from other countries.

A. With the exception of applicants from Canada who are eligible to be licensed by endorsement, applicants whose basic nursing education was received in, and who are duly licensed under the laws of, another country, shall be scheduled to take the licensing examination provided they meet the statutory qualifications for licensure. Verification of qualification shall be based on documents submitted as required in subsections subsection B and D or C of this section.

B. Such applicants for registered nurse licensure shall:

1. Submit evidence of passing from the Commission on Graduates of Foreign Nursing Schools Qualifying Examination CGFNS that the secondary education, nursing education, and license are comparable to those required for registered nurses in the Commonwealth; and

2. Submit evidence of passage of an English language proficiency examination approved by the CGFNS, unless the applicant meets the CGFNS criteria for an exemption from the requirement; and

2. 3. Submit the required application and fee for licensure by examination.

C. Such applicants for practical nurse licensure shall:

1. Submit evidence from the CGFNS that the secondary education, nursing education, and license are comparable to those required for practical nurses in the Commonwealth;

2. Submit evidence of passage of an English language proficiency examination approved by the CGFNS, unless the applicant meets the CGFNS criteria for an exemption from the requirement; and

3. Submit the required application and fee for licensure by examination.

D. An applicant for licensure as a registered nurse who has met the requirements of subsections A and B of this section may practice for a period not to exceed 90 days from the date of approval of an application submitted to the board when he is working as a nonsupervisory staff nurse in a licensed nursing home or certified nursing facility.

1. Applicants who practice nursing as provided in this subsection shall use the designation "foreign nurse graduate" on nametags or when signing official records.

2. During the 90-day period, the applicant shall take and pass the licensing examination in order to remain eligible to practice nursing in Virginia.

3. Any person practicing nursing under this exemption who fails to pass the licensure examination within the 90-day period may not thereafter practice nursing until he passes the licensing examination.

D. Such applicants for practical nurse licensure shall:

1. Submit evidence from a recognized agency that reviews credentials of foreign-educated nurses that the secondary education, nursing education, and license are comparable to those required for licensed practical nurses in the Commonwealth;

2. Request that the credentialing agency, in the country where licensed, submit the verification of licensure form directly to the board office; and

3. Submit the required application and fee for licensure by examination.

E. In addition to CGFNS, the board may accept credentials from other recognized agencies that review credentials of foreign-educated nurses if such agencies have been approved by the board.