Title of Regulation: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-182).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 7, 2011.

Effective Date: December 22, 2011.

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 of Nursing the authority to promulgate regulations to administer the regulatory system.

The specific authority for the Board of Nursing to issue a single state license to an applicant who has lost a license in another Compact state is found in § 54.1-2408 of the Code of Virginia.

Purpose: If a nurse has had his license suspended or revoked by another state in the Nurse Licensure Compact (NLC) and subsequently that nurse moves to Virginia, he is in a catch-22 situation. Since he now resides in Virginia, he is ineligible by virtue of the Compact to apply for reinstatement of his nursing license in the former home state where the license was suspended or revoked. Yet, prior to July 1, 2010, § 54.1-2408 of the Code of Virginia prohibited the Board of Nursing from licensing an individual who has been suspended or revoked. Therefore, even if that individual is eligible for reinstatement, he is unable to obtain a license either in Virginia or in the original Compact state. In order to protect the health and safety of patients in Virginia, the board will consider whether the applicant has met all terms and conditions and is eligible for reinstatement in the state where he was suspended or revoked.

The amendment in 18VAC90-20-182 will ensure Virginia's compliance with the NLC policies and rules and provide a mechanism for the Board of Nursing to consider the application of an individual who now resides in Virginia and by virtue of the requirements of the NLC is ineligible to apply for licensure in the former home state where the license was suspended or revoked. The Nurse Licensure Compact Administrator Group has requested that all Compact states adopt regulations to conform to the NLC policy allowing for issuance of a license in this circumstance that would be valid for practice solely in the home state. States would be prohibited from issuing a license with a multistate privilege if the license had not been reinstated in the former home state.

Rationale for Using Fast-Track Process: The issue of licensure for an applicant who had a license that was surrendered, suspended, revoked, or denied in another Compact state but has met all terms and conditions is not controversial. When House Bill 662 was introduced into the 2010 Session of the General Assembly at the request of the Department of Health Professions, the inclusion of an amendment to allow such issuance was supported by all nursing groups, employers, and other interested parties. Therefore, the addition of subsection B in 18VAC90-20-182, permitted by the passage of enactment of Chapter 414 of the 2010 Acts of Assembly and the amendment to § 54.1-2408, should not be controversial.

Substance: Subsection B is added to 18VAC90-20-182 to provide that an individual who had a license that was surrendered, revoked, or suspended, or an application denied for cause in a prior state of primary residence, may be issued a single state license in a new primary state of residence until such time as the individual would be eligible for an unrestricted license by the prior state(s) of adverse action. Once eligible for licensure in the prior state(s), a multistate license may be issued.

Issues: The primary advantage to the public is the continued availability of nurses who have completed terms and conditions placed on their licenses in other states. The primary advantage to the agency is continued consistency with the Model Rules and Regulations of the Nurse Licensure Compact. There are no disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to amendments made to § 54.1-2408 in 2010, the proposed regulations allow the Board of Nursing to issue a single-state license to a nurse who has had her license suspended, revoked, or surrendered in another Nurse Licensure Compact state.

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

Estimated Economic Impact. Under the current regulations, if a nurse has had his or her license suspended, revoked, or surrendered in another state in the Nurse Licensure Compact and subsequently moved to Virginia, he or she is ineligible by virtue of the Compact to apply for reinstatement of his nursing license in the former home state where the license was suspended, revoked, or surrendered.¹ Also, prior to July 1, 2010, § 54.1-2408 prohibited the Board of Nursing from licensing an individual who has been suspended, revoked, or surrendered in another Compact state. Therefore, even if that individual may have been eligible for reinstatement, he or she was unable to obtain a license either in Virginia or in the Compact state.

Amendments made to § 54.1-2408 in 2010 allow the Board of Nursing to issue a license to a nurse who has had her license suspended, revoked, or surrendered in another Compact state. The proposed regulations incorporate this statutory change into the regulations.

The main benefit of the proposed change is making it possible for the Board of Nursing to issue a single-state license to a nurse who has had her license suspended, revoked, or surrendered in another state in the Nurse Licensure Compact and subsequently moved to Virginia. While reinstatement of a license may require some small administrative costs, they are not expected to be significant. The number of nurses whose licenses may be issued under the proposed regulations is expected to be less than ten.

Businesses and Entities Affected. The regulations of the Board of Nursing apply to approximately 90,000 nurses. However, the number of nurses whose licenses may be reinstated under the proposed regulations is expected to be less than ten.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. The proposed regulations make it possible to reinstate a nurse who had his or her license suspended or revoked by another state in the Nurse Licensure Compact and subsequently moved to Virginia. Thus, an increase in the supply of nurses can be expected. The number of nurses whose licenses may be reinstated under the proposed regulations is expected to be less than ten.

Effects on the Use and Value of Private Property. The proposed regulations are not expected to have any effect on the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed regulations are not expected to have any costs and other effects on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations are not expected to have any adverse effects on small businesses.

Real Estate Development Costs. The proposed regulations are not expected to have any effects of real estate development costs.

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 14 (10). 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.

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¹Currently, there are 24 states in the Nurse Licensure Compact.

Agency's Response to 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:

Based on Chapter 414 of the 2010 Acts of Assembly, the amendments allow the Board of Nursing to issue a single-state license to a nurse whose license was suspended, revoked, or surrendered in another Nurse Licensure Compact state.

18VAC90-20-182. Limitations of a multistate licensure privilege.

A. The board shall include in all disciplinary orders that limit practice or require monitoring the requirement that the licensee subject to the order shall agree to limit practice to Virginia during the period in which the order is in effect. A nurse may be allowed to practice in other party states while an order is in effect with prior written authorization from both the board and boards of other party states.

B. An individual who had a license that was surrendered, revoked, or suspended, or an application denied for cause in a prior state of primary residence, may be issued a single state license in a new primary state of residence until such time as the individual would be eligible for an unrestricted license by the prior state(s) of adverse action. Once eligible for licensure in the prior state(s), a multistate license may be issued.