Title of Regulation: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-10, 18VAC90-20-220; adding 18VAC90-20-221, 18VAC90-20-222).

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

Public Hearing Information:

November 13, 2012 - 9 a.m. - Department of Health Professions, 9960 Mayland Drive, Perimeter Center, 2nd Floor Conference Center, Henrico, VA

Public Comment Deadline: December 7, 2012.

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 authority to establish qualifications for licensure as necessary to ensure competence and provides general authority to promulgate regulations to administer the regulatory system. Additionally, § 54.1-103 authorizes the board to require additional training of regulated persons for renewal of licensure.

Purpose: Along with national organizations and commissions, the Board of Nursing has been studying the issue of competency assessment for continuation of licensure. After a review of national recommendations, reports, and regulatory models, the board has concluded that there should be evidence of continued competency for renewal of a nursing license. Registered and practical nurses are the only health professionals in Virginia who do not currently have any requirement to maintain competency beyond that required for initial licensure. While there may be value to an individual nurse in obtaining continuing education (CE), the board does not intend to rely solely on the CE model for demonstration of competency. The goal is to engage the nurse in a continuum of learning and renewal of knowledge and skills through a variety of practical and didactic experiences.

The National Council of State Boards of Nursing (NCSBN) defines continued competence as "the ongoing ability of a nurse to integrate knowledge, skills, judgment and personal attributes to practice safely and ethically in a designated role and setting in accordance with the scope of nursing practice." The mission of a licensing board is to protect public health, welfare, and safety by assuring that persons are minimally competent to practice at initial licensure and that they remain competent and safe throughout their careers. At the present time, there is no regulatory requirement that nurses demonstrate any measure of competency following initial licensure.

A 2009 report on continued competence from NCSBN states that maintaining competency to practice is a responsibility shared by the individual nurse, his or her employer, and the regulatory entity that must answer to the public. Therefore, the board has determined that there should be some regulatory framework for demonstrating continued competency for the health and safety of the patients in the care of nurses in Virginia.

Substance: The Board of Nursing proposes that regulations offer options for measurement of continued competence including (i) evidence of specialty certification from a board-approved entity; (ii) nursing-related coursework for academic credit or a refresher course; (iii) evidence-based nursing-related research and publication or teaching; (iv) a combination of 15 hours of continuing education and 640 practice hours in a two-year period while holding an unencumbered license; or (v) 30 hours of continuing education hours in workshops, seminars, or courses relevant to the practice of nursing.

A listing of providers recognized by the board, requirements for persons who hold dual licensure, and provisions for extensions or exemptions are set out in regulation. Finally, specific documentation of compliance is delineated for each of the types of continued competency activities or options selected.

Issues: The primary advantage of the amended provisions would be a more highly qualified, competent corps of nurses who have obtained additional training, knowledge, and competency to practice. There are no disadvantages to private citizens or businesses. Institutional employers of nurses currently require continued learning activities or courses. For those nurses who are not currently engaged in continued learning, there will be some additional costs. The availability of online courses at little or no cost will mean that a nurse can fulfill the requirements without taking time from work or incurring the expense of attendance at a meeting or workshop.

The primary advantage to the board is consistency with continuing education or continuing competency requirements of all other professions in Virginia and with most other states in the United States. There are no disadvantages to the agency.

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 regulations by adding a definition for active practice and by newly requiring proof of continuing education as a part of the biennial renewal process.

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

Estimated Economic Impact. Currently, Board regulations do not require nurses to complete any continuing education as a condition of license renewal. Board staff reports that the Board has had several disciplinary actions come before them that indicate a lack of continued competency among some of their licensees. The Board now proposes to require proof of continuing competency as a condition of biennial renewal for every renewal cycle after the first. The Board proposes to allow many different kinds of educational experiences to count toward fulfilling this new continuing competency requirement. Amongst the learning activities that will count are:

• Having a current specialty certification from a Board recognized national certification organization,

• Completing a three credit hour college course that is relevant to the practice of nursing,

• Completing a Board certified refresher course in nursing,

• Completing a nursing-related, evidence-based practice project or research study,

• Authoring or co-authoring an article that is published during a renewal cycle,

• Teaching a three credit hour college course that is relevant to the practice of nursing,

• Teaching nursing-related continuing education courses for up to 30 contact hours,

• Working at least 640 hours as a nurse during the renewal cycle and completing 15 contact hours of workshops, seminars, conferences or courses relevant to the practice of nursing or

• Completing 30 contact hours of workshops, seminars, conferences or courses relevant to the practice of nursing.

Licensees may complete contact hour activities that are approved by the American Nurses Credentialing Center (ANCC), American Nurses Association (ANA), National Council of State Boards of Nursing (NCSBN), Area Health Education Centers (AHEC), any state nurses association, National Association for Practical Nurse Education and Services (NAPNES) or the National Federation of Licensed Practical Nurses (NFLPN). Individuals who are licensed as both registered nurses and licensed practical nurses only have to meet continuing competency for one license. Registered nurses who are also licensed as nurse practitioners must only meet the continuing educational requirements for nurse practitioners and nurse practitioners with prescriptive authority will also have to meet the continuing education requirements that are listed in the regulations that govern prescriptive authority. Licensees will be required to maintain records to prove continuing competency for two years following the renewal cycle.

Board staff reports that entities such as hospitals are required to offer continuing education opportunities to their nursing staff as a part of hospital licensure requirements and that various nurses associations offer online educational opportunities that would meet the requirements of these regulations at a cost of approximately $5 to $6 per hour (approximately $75 to $180 per renewal cycle). Board staff also reports that college courses would likely cost approximately $300 per credit hour but that individuals who are not already enrolled in college courses for some other reason would likely choose one of the lower explicit cost or no explicit cost educational options. Individuals who teach nursing-related college or continuing education courses can meet their continuing competency requirements with activities for which they actually earn money (the number of individuals who can do this is likely very small when compared to the total number of Board licensees). Individual licensees will incur explicit costs equal to the cost of the educational opportunity chosen and most individuals will also incur implicit opportunity costs for time spent meeting Board requirements. To the extent that Board required continuing education improves the quality of nursing in the Commonwealth, both nurses and their patients will benefit. There is insufficient information to ascertain whether benefits will outweigh costs.

Businesses and Entities Affected. The Department of Health Professions (DHP) reports that the Board currently regulates 29,828 licensed practical nurses and 91,316 registered nurses; 6,227 of these registered nurses are also licensed as nurse practitioners and 3,685 nurse practitioners have prescriptive authority. All of these entities, as well as any individuals or entities who may wish to become licensed 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. New requirements for continuing education will likely marginally increase the cost of licensure. This may marginally decrease the number of individuals who choose to work in professional fields that are regulated by the Board. Individuals who work part time or whose earnings are only slightly higher in these licensed fields than they would be in other jobs that do not require licensure will be more likely to be affected.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses that employ nursing staff may see their costs slightly increase if they have to raise nurses salaries to offset some or all of the costs of newly required continuing education.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are likely no alternate methods to implement the proposed regulatory changes that would both achieve the Board's goals and be less costly.

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 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.

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

The EIA states that the board now proposes to require proof of continuing competency as a condition of biennial renewal for every renewal cycle. Proof of continuing competency or submission of documentation will not be a condition of renewal; licensees will be required to participate in continuing competency activities and maintain a record of such participation. Only if requested by the board will the licensee be required to submit evidence of compliance.

Summary:

The proposed amendments establish requirements for continuing competency activities or courses in order to renew an active license as a registered nurse or a practical nurse each biennium. The options available include a refresher course, post-licensure academic course, current specialty certification, research and teaching, active practice for 640 hours and 15 hours of courses, or 30 hours of approved courses. The entities and organizations that can recognize or approve a continuing education provider are listed in regulation.

Regulations provide an exemption for nurses who have an active license as a nurse practitioner and for the second license if someone is licensed as an RN and LPN. Finally, there is a requirement for documentation of completion to be maintained for two years following renewal, and the documentation required for each type of activity or requirement is specified.

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).

"Active practice" means activities performed, whether or not for compensation, for which an active license to practice nursing is required.

"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.

18VAC90-20-220. Renewal of licenses.

A. Licensees born in even-numbered years shall renew their licenses by the last day of the birth month in even-numbered years. Licensees born in odd-numbered years shall renew their licenses by the last day of the birth month in odd-numbered years.

B. No less than 30 days prior to the last day of the licensee's birth month, a notice for renewal of license shall be mailed by the board to the last known address of each licensee, who is currently licensed After [insert date], a nurse shall be required to meet the requirements for continued competency set forth in 18VAC90-20-221 in order to renew an active license.

C. A notice for renewal of license shall be sent by the board to the last known address of the licensee. The licensee shall complete the renewal form and submit it with the required fee.

D. Failure to receive the renewal form shall not relieve the licensee of the responsibility for renewing the license by the expiration date.

E. The license shall automatically lapse if the licensee fails to renew by the expiration date.

F. Any person practicing nursing during the time a license has lapsed shall be considered an illegal practitioner and shall be subject to prosecution under the provisions of § 54.1-3008 of the Code of Virginia.

G. Upon renewal, all licensees shall declare their primary state of residence. If the declared state of residence is another compact state, the licensee is not eligible for renewal.

18VAC90-20-221. Continued competency requirements for renewal of an active license.

A. In order to renew an active nursing license, a licensee shall complete at least one of the following learning activities or courses:

1.Current specialty certification by a national certifying organization, as defined in 18VAC90-20-10;

2. Completion of a minimum of three credit hours of post-licensure academic education relevant to nursing practice, offered by a regionally accredited college or university;

3. A board-approved refresher course in nursing;

4. Completion of nursing-related, evidence-based practice project or research study;

5. Completion of publication as the author or co-author during a renewal cycle;

6. Teaching a nursing-related course resulting in no less than three semester hours of college credit or specialty certification;

7. Teaching nursing-related continuing education courses for up to 30 contact hours;

8. Fifteen contact hours of workshops, seminars, conferences, or courses relevant to the practice of nursing and 640 hours of active practice as a nurse; or

9. Thirty contact hours of workshops, seminars, conferences, or courses relevant to the practice of nursing.

B. To meet requirements of subdivision A 8 or 9 of this section, workshops, seminars, conferences, or courses shall be offered by a provider recognized or approved by one of the following:

1. American Nurses Credentialing Center (ANCC)/American Nurses Association (ANA);

2. National Council of State Boards of Nursing (NCSBN);

3. Area Health Education Centers (AHEC) in any state in which the AHEC is a member of the National AHEC Organization;

4. Any state nurses association;

5. National League for Nursing (NLN);

6. National Association for Practical Nurse Education and Service (NAPNES);

7. National Federation of Licensed Practical Nurses (NFLPN);

8. A licensed health care facility, agency, or hospital;

9. The American Heart Association or the American Red Cross for courses in advanced resuscitation; or

10. Virginia Board of Nursing or any state board of nursing.

C. Dual licensed persons.

1. Those persons dually licensed by this board as a registered nurse and a licensed practical nurse shall only meet one of the continued competency requirements as set forth in subsection A of this section.

2. Registered nurses who also hold an active license as a nurse practitioner shall only meet the requirements of 18VAC90-30-105 and, for those with prescriptive authority, 18VAC90-40-55.

D. A licensee is exempt from the continued competency requirement for the first renewal following initial licensure by examination or endorsement.

E. The board may grant an extension for good cause of up to one year for the completion of continuing competency requirements upon written request from the licensee 60 days prior to the renewal date. Such extension shall not relieve the licensee of the continuing competency requirement.

F. The board may grant an exemption for all or part of the continuing competency requirements due to circumstances beyond the control of the licensee such as temporary disability, mandatory military service, or officially declared disasters.

G. Continued competency activities or courses required by board order in a disciplinary proceeding shall not be counted as meeting the requirements for licensure renewal.

18VAC90-20-222. Documenting compliance with continued competency requirements.

A. All licensees are required to maintain original documentation of completion for a period of two years following renewal and to provide such documentation within 30 days of a request from the board for proof of compliance.

B. Documentation of compliance shall be as follows:

1. Evidence of national certification shall include a copy of a certificate that includes name of licensee, name of certifying body, date of certification, and date of certification expiration. Certification shall be initially attained during the licensure period, have been in effect during the entire licensure period, or have been recertified during the licensure period.

2. Evidence of post-licensure academic education shall include a copy of transcript with the name of the licensee, name of educational institution, date of attendance, name of course with grade, and number of credit hours received.

3. Evidence of completion of a board-approved refresher course shall include written correspondence from the provider with the name of the licensee, name of the provider, and verification of successful completion of the course.

4. Evidence of completion of a nursing research or project shall include an abstract or summary, the name of the licensee, role of the licensee as principal or coprincipal investigator, date of completion, statement of the problem, research or project objectives, methods used, and summary of findings.

5. Evidence of authoring or co-authoring a published nursing-related article, paper, book, or book chapter, which shall include a copy of the publication to include the name of the licensee and publication date.

6. Evidence of teaching a course for college credit shall include documentation of the course offering, indicating instructor, course title, course syllabus, and the number of credit hours. Teaching a particular course may only be used once to satisfy the continued competency requirement unless the course offering and syllabus has changed.

7. Evidence of teaching a course for continuing education credit shall include a written attestation from the director of the program or authorizing entity including the date or dates of the course or courses and the number of contact hours awarded. If the total number of contact hours totals less than 30, the licensee shall obtain additional hours in continuing learning activities or courses.

8. Evidence of contact hours of continuing learning activities or courses shall include the name of the licensee title of educational activity, name of the provider, number of contact hours, and date of activity.

9. Evidence of 640 hours of active practice in nursing shall include documentation satisfactory to the board of the name of the licensee, number of hours worked in calendar or fiscal year, name and address of employer, and signature of supervisor. If self-employed, hours worked may be validated through other methods such as tax records or other business records. If active practice is of a volunteer or gratuitous nature, hours worked may be validated by the recipient agency.