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

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.

Purpose: The purpose of the regulatory action is to eliminate the requirement for applicants from other countries to be duly licensed in another country to qualify for licensure in Virginia, as it now places many applicants in a catch-22 position. Once they have applied for the visa-screen and declared their intent to immigrate to the U. S., they are ineligible for licensure in their home country. The dilemma has been exacerbated by changes in immigration laws in recent years.

Applicants from foreign countries must have a Commission on Graduate of Foreign Nursing Schools (CGFNS) credentials review and the test of English proficiency. Those requirements, coupled with a requirement for passage of the 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. Many applicants from those countries have already completed all requirements for licensure in Virginia and some are U. S. citizens. Because they are unable to obtain a license in the foreign country, they are unable to be licensed in Virginia.

Rationale for Using Fast Track Process: The current regulatory requirement is burdensome and unnecessary for public safety. It creates a barrier to licensure that prevents qualified nurses from other countries from coming to Virginia. Therefore, the board would like to eliminate the barrier as soon as possible and is supportive of a fast-track action. The board does not expect the proposal to be controversial.

Substance: 18VAC90-20-210 is amended to eliminate the requirement that a registered nurse or practical nurse applicant from a foreign country be duly licensed under the laws of that country in order to qualify for licensure in Virginia.

Issues: The primary advantage to the public is the availability of nurses who have completed all educational and examination requirements for licensure but who are currently unable to be licensed in Virginia. There are no disadvantages to the public. There are no advantages or disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing proposes to eliminate prior licensure requirement for applicants educated in foreign countries.

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

Estimated Economic Impact. Current regulations require that applicants educated in foreign countries hold a nursing license in that country to be eligible for licensure in Virginia. This requirement creates two types of problems. First, declaration of intent to immigrate to the United States makes applicants ineligible for licensure in some of the foreign countries. Second, some of the United States citizens obtain their nursing education in foreign countries for reasons such as having familial ties there or taking advantage of lower cost of nursing education. Because applicants in these circumstances are unable to obtain a license in the foreign country, they are unable to be licensed in Virginia under current regulations. The proposed regulations will eliminate prior licensure requirement for applicants educated in foreign countries.

There appears to be sufficient safeguards in place to ensure that the knowledge, ability, and skills necessary to practice safe nursing in Virginia are not compromised due to the proposed change. Credentials of applicants from foreign countries will continue to be reviewed by the Commission on Graduate of Foreign Nursing Schools. Also, foreign educated nurses must pass the National Council Licensing Examination, the national licensing examination that all registered and practical nurses must take. According to Department of Health Professions, review of credentials and the passage of the national licensing examination should assure that foreign trained nurses have the basic nursing knowledge, clinical ability, and communication skills to practice with safety.

The proposed regulations will mainly benefit individuals who received their nursing education in a different country, who do not have a license in that country and who wish to be licensed in Virginia. It is probable that some of these individuals may be currently working in professions other than nursing and may not be fully utilizing their skills.

In addition, nursing employers in Virginia are expected to benefit from this change as the proposed change has the potential to increase the number of nurses available for employment. However, there is no reliable estimate for the potential increase in the number of nurses available for employment due to this proposed change. Given the current nursing shortage in Virginia, the potential employees are expected to benefit from this change.

Businesses and Entities Affected. The proposed regulations will affect nursing applicants educated in foreign countries who do not hold a license in those countries. There is no reliable estimate for the number of such individuals. However, there are approximately 98,000 nurses licensed in Virginia.

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

Projected Impact on Employment. The proposed regulations are expected to increase the supply of nurses which in turn should have a positive impact on employment given the current nursing shortage in Virginia.

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

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

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations are not anticipated to have an adverse effect on small businesses.

Real Estate Development Costs. The proposed regulations are not anticipated to have an effect on 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 DPBs best estimate of these economic impacts.

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:

The amendments eliminate the requirement that a registered nurse or practical nurse applicant from a foreign country be duly licensed under the laws of that country in order to qualify for licensure in Virginia.

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 subsection B or C of this section.

B. Such applicants for registered nurse licensure shall:

1. Submit evidence from the CGFNS that the secondary education, and nursing education, and license are comparable to those required for registered 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.

C. Such applicants for practical nurse licensure shall:

1. Submit evidence from the CGFNS that the secondary education, and 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.

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.